Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events: (i) during any fiscal quarter of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130% of the Conversion Price on such last Trading Day; (ii) in the event that the Company calls the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an event; or (iii) as provided in Section (b) of this Section 15.01. (i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof. (b) In addition, if: (i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or (ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date. (c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15. (d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05. (e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction: (i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and (ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 2 contracts
Sources: Indenture (Alliant Techsystems Inc), Indenture (Alliant Techsystems Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated MaturityJune 15, 2013, the holder of any Note Debenture shall have the right, at such holder’s option, to convert the principal amount of the NoteDebenture, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note Debenture so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 16.01 and in the manner provided in Section 15.0216.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes Debentures shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter Fiscal Quarter commencing after July 4, 2003, if the Closing Sale Price exceeds 120% of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) if the Last Reported Sale Conversion Price for the Common Stock in effect for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130% immediately preceding Fiscal Quarter (it being understood for purposes of this Section 16.01(a)(i) that the Conversion Price in effect at the close of business on such last each of the 30 consecutive Trading DayDays should be used);
(ii) during the five Business Day period after any five consecutive Trading Day period in which the event Trading Price per $1,000 principal amount of the Debentures for each day of such five Trading Day period was less than 98% of the product of the Closing Sale Price and the number of shares of Common Stock issuable upon conversion of $1,000 principal amount of the Debentures; provided that if on the Company calls date of any conversion pursuant to this clause (ii) after June 15, 2010, the Notes Closing Sale Price of the Common Stock is greater than the Conversion Price, a holder shall receive, in lieu of Common Stock based on the Conversion Price, cash or Common Stock or a combination of cash and Common Stock, at the Company’s option, with a value equal to the principal amount of the holder’s Debentures plus accrued interest as of the conversion date (a "Principal Value Conversion");
(iii) if such Debenture has been called for redemption, at any time prior to on or after the date the notice of redemption has been given until the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventdate; or
(iiiiv) as provided in Section (b) of this Section 15.01.
16.01. The Trustee (ior other conversion agent appointed by the Company) shall, on behalf of the Company, determine on a daily basis during the time period specified in Section 16.01(a)(i) whether the Notes Debentures shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes Debentures shall be so convertible, the Company Trustee (or other conversion agent appointed by the Company) shall promptly deliver to the Company and the Trustee (or other Conversion Agent appointed by if the CompanyTrustee is not the conversion agent) written notice thereof. Whenever the Notes Debentures shall become convertible pursuant to this Section 15.0116.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0317.03, and the Company shall also publicly announce such information by publication and publish it on the Company’s Web site or through such other public medium as it may use at such timeweb site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other conversion agent appointed by the Company) shall have no obligation to determine the Trading Price under this Section 16.01 unless the Company has requested such a determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Debentures would be less than 98% of the product of the Closing Sale Price and the number of shares of Common Stock issuable upon conversion of $1,000 principal amount of Debentures. If such evidence is provided, the Company shall instruct the Trustee (or other conversion agent) to determine the Trading Price of the Debentures beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Debentures is greater than or equal to 98% of the product of the Closing Sale Price and the number of shares issuable upon conversion of $1,000 principal amount of the Debentures; provided that the Trustee shall be under no duty or obligation to make the calculations described in Section 16.01(a)(ii) hereof or to determine whether the Debentures are convertible pursuant to such section. For the avoidance of doubt, the Company shall make the calculations described in Section 16.01(a)(ii), using the Trading Price provided by the Trustee. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a16.01(a)(i) hereofand Section 16.01(a)(ii) hereof (including without limitation the calculation or determination of the Conversion Price, the Closing Sales Price and the Trading Price), and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.0116.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a16.01(a)(i) and Section 16.01(a)(ii) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this First Supplemental Indenture, including Section 9.03 hereof, prior to the close of business on the Stated MaturityJuly 15, 2037, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a an integral multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) 1,000 at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 9.01 and in the manner provided in Section 15.029.02. The Company may elect to deliver Settlement of conversions in cash in lieu of or shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to or a combination thereof, shall be made as set forth in Section 15.02(g) to allow for payment upon conversion as described therein9.03 hereof. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal calendar quarter of the Company commencing after the calendar quarter ended October 3September 30, 2004 2007 and before the Business Day immediately prior to the Stated Maturity (and only during such fiscal calendar quarter) if the Last Reported Sale Price for the Common Stock for at least 20 twenty (20) Trading Days during the period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the previous fiscal calendar quarter equals is greater than or exceeds 130equal to 120% of the Conversion Price on such last Trading Day;
(ii) in the event that the Company calls any or all of the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption DateDate (unless the Company fails to pay the Redemption Price); provided provided, that only those Notes that are called for redemption may be converted following such an event; or;
(iii) during the five (5) consecutive Business Day period after any five (5) consecutive Trading Day period in which the Trading Price per Note, as determined following a request by a holder in accordance with the procedures described below, for each day of that period was less than 98% of the product of the Conversion Rate and the Last Reported Sale Price of the Common Stock such day (the “98% Trading Exception”); provided, however, that if on the date of any conversion pursuant to the 98% Trading Exception that is on or after July 15, 2022, the Last Reported Sale Price of the Common Stock on the Trading Day immediately prior to the Conversion Date is greater than 100% of the Conversion Price, then Noteholders surrendering Notes for conversion will receive, in lieu of shares of Common Stock based on the Conversion Rate, shares of Common Stock with a value equal to the principal amount of Notes being converted (a “Principal Value Conversion”). Shares of Common Stock delivered upon a Principal Value Conversion will be valued at the greater of the effective Conversion Price on the eighth day prior to the Conversion Date and the Last Reported Sale Price as of the Conversion Date and will be delivered no later than the third Business Day following the determination of the Last Reported Sale Price;
(iv) as provided in Section (b) of this Section 15.01.9.01; or
(v) after the effective date of a Make-Whole Fundamental Change, until the 30th calendar day following such date, or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change pursuant to which the Company is required to purchase the Notes at the Noteholder’s option, until the related Fundamental Change Repurchase Date. The Company will notify holders of ay such Make-Whole Fundamental Change and the anticipated effective date and issue a press release no later than ten (10) days prior to such transaction’s anticipated effective date. If the effective date of a Make-Whole Fundamental Change occurs on or prior to July 15, 2012, and a holder elects to convert the Notes during such period (regardless of whether any other conditions to conversion set forth in clauses (i) through (iv) have been satisfied), the Company shall increase the Conversion Rate surrendered for conversion by a number of additional shares of Common Stock, which shall be determined by reference to the table below and is based on the effective date and sale price of Common Stock in such Make-Whole Fundamental Change determined as follows: (A) if the consideration paid to holders of Common Stock in such transaction consists exclusively of cash, the cash price per share and (B) otherwise, the average of the Last Reported Price of Common Stock for the ten (10) Trading Day period ending on the Trading Day immediately preceding the effective date of the transaction. The stock prices set forth in the first column of the table shall be adjusted as of any date on which the Conversion Rate is adjusted. The adjusted stock prices will equal the stock prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of additional shares of Common Stock to added to the Conversion Rate will be subject to adjustment in the same manner as adjustments to the Conversion Rate set forth in Section 9.06 hereof. July 25, 2007 12.9177 8.4082 5.2002 3.0489 1.6502 0.7808 0.2888 0.0110 0.0001 0.0000 0.0000 July 15, 2008 12.9177 8.6432 5.4361 3.2736 1.8558 0.9603 0.4285 0.0403 0.0011 0.0000 0.0000 July 15, 2009 12.9177 8.7250 5.4872 3.3061 1.8812 0.9847 0.4524 0.0505 0.0019 0.0000 0.0000 July 15, 2010 12.9177 8.5942 5.2888 3.0900 1.6885 0.8386 0.3607 0.0353 0.0013 0.0000 0.0000 July 15, 2011 12.9177 8.1176 4.6260 2.3941 1.0946 0.4226 0.1310 0.0059 0.0001 0.0000 0.0000 July 15, 2012 12.9177 7.5365 3.0921 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The exact stock price and effective date may not be set forth on the table, in which case: (A) if the stock price is between two stock price amounts on the table above or the effective date is between two dates on the table, the number of additional shares will be determined by straight-line interpolation between the number of additional shares set forth for the higher and lower stock price amounts and the two dates, as applicable, based on a 365-day year; (B) if the stock price exceeds $55.00 per share (subject to adjustment), no additional shares will be added to the Conversion Rate; (C) if the stock price is less than $20.07 per share (subject to adjustment), no additional share will be added to the Conversion Rate; and the Conversion Rate shall not exceed 49.8256 per $1,000.00 principal amount of such Notes, subject to adjustment as provided in Section 9.06. In connection with any conversion pursuant to (iii), the Trustee shall have no obligation to obtain the bids necessary for the Company to determine the Trading Price of the Notes unless the Company has requested it to do so, and the Company shall have no obligation to make such request unless a holder provides the Company with reasonable evidence that the Trading Price per Note is less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time, the Company will instruct the Trustee to obtain the bids (in the manner described in the definition of Trading Price) beginning on the next Trading Day and on each successive Trading Day until the Trading Price per Note is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. The Company or its designated agent shall determine on a daily basis during the time period specified in Section 9.01(a)(i) and (iii) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) or (iii) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.019.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0313.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) 9.01 hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.019.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) 9.01 hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them to subscribe for or purchase (for a period expiring within 60 45 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash)assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors of the Company and set forth in a Board Resolution exceeding 10% five (5) percent of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided provided, that no holder of a Note will have the ability may exercise this right to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or;
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveysexchange, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 which is fifteen (15) days prior to the anticipated effective date of the transaction and ending on until and including the date 15 which is fifteen (15) days after the anticipated actual effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date)transaction. The Board of Directors of the Company shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two (2) Business Days prior to such the 15th day before prior to the anticipated effective datedate of the transaction. If Notes are not surrendered pursuant to this paragraph for conversion, at the effective time of the transaction, the right to convert the Notes into Common Stock will be changed into a right to convert the Notes into the kind and amount of, cash, securities or other property that a Noteholder would have received if such holder had converted such holder’s Notes immediately prior to the applicable Record Date for such transaction.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 3.06 or repurchase pursuant to Section 3.06 3.07 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes Noteholder is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15IX.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated MaturityJanuary 15, 2024, the holder of any Note Debenture shall have the right, at such holder’s 's option, to convert the principal amount of the Notesuch Debenture, or any portion of such principal amount which is a an integral multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note Debenture so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes Debentures shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) prior to January 15, 2019, during any fiscal quarter of the Company after the fiscal quarter ended October 3of the Company ending March 31, 2004 (and only during such fiscal quarter) 2004, if the Last Reported Sale Price for of the Common Stock for at least 20 twenty (20) Trading Days during the period of 30 thirty (30) consecutive Trading Days ending on the last first Trading Day of the previous such fiscal quarter equals or exceeds 130125% of the Conversion Price on such last Trading DayDay and, on or after January 15, 2019, at any time after the Last Reported Sale Price of the Common Stock is more than 125% of the Conversion Price;
(ii) in the event that the Company calls the Notes Debentures for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes Debentures that are called for redemption may be converted following such an event; or;
(iii) as provided in Section (b) of this Section 15.01.;
(iv) during the five (5) Business Day period immediately after any ten (10) consecutive Trading Day period in which the Trading Price per $1,000 principal amount of the Debentures for each day of such ten (10) day measurement period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on the applicable date and the Conversion Rate, as determined following a request by a holder of Debentures in accordance with the procedures described below; or
(v) upon the occurrence of certain reductions in credit ratings as follows:
(A) at any time when (i) the long-term credit rating assigned to the Debentures by Moody's Investor Service, Inc. ("Moody's") is ▇▇▇▇ ▇▇ lower or the long-term credit rating assigned to the Debentures by Standard & Poor's Rating Services ("Standard & Poor's") is two rating categories below the long term credit rating, if any, initially assigned to the Debentures by Standard & Poor's or lower or (ii) both Moody's and Standard & Poor's have discontinued, withdrawn, suspended or, in the case of Standard & Poor's, not given, their long-term credit rating with respect to the Debentures; or
(B) if only one of Moody's and Standard & Poor's continues to provide a long-term credit rating for the Debentures, at any time when (i) the long-term credit rating assigned to the Debentures by such rating agency is Caa1 or lower, in the case of Moody's, or two rating categories below the long term credit rating, if any, initially assigned to the Debentures by Standard & Poor's or lower, in the case of Standard & Poor's, or (ii) such rating agency has discontinued, withdrawn, suspended or, in the case of Standard & Poor's, not given, its long-term credit rating with respect to the Debentures. Notwithstanding the foregoing, if, on the date of any conversion pursuant to Section 15.01(a)(iv) on or after January 15, 2019, the Last Reported Sale Price of the Common Stock on the Trading Day prior to the date of such conversion is greater than 100% but less than 125% of the Conversion Price, the holders of Debentures surrendered for conversion shall receive, in lieu of Common Stock based on the Conversion Rate, cash or Common Stock or a combination of cash and Common Stock, at the Company's option, with a value equal to the principal amount of the Debentures to be converted plus accrued and unpaid interest, if any, to (but excluding) the Conversion Date (a "PRINCIPAL VALUE CONVERSION"). Any Common Stock delivered upon a Principal Value Conversion will be valued at the greater of the Conversion Price on the Conversion Date and the average of the Last Reported Sale Price of the Common Stock for a five (5) Trading Day period starting the third (3rd) Trading Day following the Conversion Date. If a holder of Debentures surrenders its Debentures for a Principal Value Conversion, the Company shall notify such holder by the second (2nd) Trading Day following the Conversion Date that it is a Principal Value Conversion and whether the Notes Company will pay such holder all or a portion of such principal amount and interest in cash, Common Stock or a combination of cash and Common Stock, and in what percentage. The Company shall pay such holder any portion of such principal amount and interest to be paid in cash and deliver Common Stock with respect to any portion of such principal amount and interest to be paid in Common Stock, no later than the third (3rd) Business Day following the determination of the average Last Reported Sale Price of the Common Stock. The Company or its designated agent shall determine on a daily basis during the time period specified in clause (i) above whether the Debentures shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes Debentures shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes Debentures shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s 's request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0316.04, and the Company shall also publicly announce such information by publication on the Company’s Web 's web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other Conversion Agent appointed by the Company) shall have no obligation to determine the Trading Price under this Section 15.01 unless the Company has requested in writing such a determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Debentures would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If such evidence is provided, the Company shall instruct the Trustee (or other Conversion Agent) in writing to determine the Trading Price of the Debentures beginning on the next Trading Day and on each successive Trading Day until, and only until, the Trading Price per $1,000 principal amount of Debentures is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s 's duties and obligations pursuant to this Section 15.01(a) hereof), and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to this Section 15.01(a) hereof).
(b) In addition, if:
(i) (A) the Company distributes to all holders of its shares of the Common Stock rights any rights, warrants, options or warrants other securities entitling them (for a period expiring within 60 of not more than forty-five (45) days of after the date of the distributionissuance thereof) to subscribe for or purchase shares of Common Stock, or securities convertible into shares of Common Stock (for a period of not more than forty-five (45) days after the date of issuance thereof), in either case at a price per share or conversion price per share less than the average of the Last Reported Sale Price on Prices of the Common Stock for the five (5) Trading Day Days immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of shares of Common Stock assets (including cash), debt securities evidences of indebtedness or other property or rights to subscribe for or purchase securities of the CompanyCompany (other than those described in clause (A) above), which distribution has a per share value as determined by the Company’s 's Board of Directors and set forth in a Board Resolution exceeding 10% of the average of the Last Reported Sale Price Prices of the Common Stock on for the five (5) Trading Day Days immediately preceding the declaration date for of such distribution, then, in either case, the Notes Debentures may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which notice shall be given not less than 20 Business Days twenty (20) days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, preceding the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided provided, that no holder of a Note will have the ability Debenture may exercise its right to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or;
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveysexchange, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is would be converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes Debentures may be surrendered for conversion at any time from and after the date 15 which is fifteen (15) days prior to the anticipated effective date of the transaction and ending on until and including the date 15 which is fifteen (15) days after the anticipated actual effective date of such transaction; and
(iii) the transaction (orCompany engages in a reclassification of the Common Stock or is a party to a consolidation, if merger, binding share exchange or transfer of all or substantially all of its assets, in each case pursuant to which the Common Stock is converted into cash, securities or other property, then at the effective time of such transaction also results in holders having transaction, the right to require convert a Debenture into shares of Common Stock will be changed into a right to convert such Debenture into the kind and amount of cash, securities or other property which a holder would have received if the holder had converted its Debentures into shares of Common Stock immediately prior to the applicable Record Date for such transaction. If the Company to repurchase Notesengages in any transaction described in the preceding sentence, until the Fundamental Change Repurchase Date)Conversion Rate will not otherwise be adjusted. The Board of Directors shall determine the anticipated effective date of the transactionany transaction described in Section 15.01(b)(ii), and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web web site or through such other public medium as it may use at that time not later than two (2) Business Days prior to such 15th the first fifteen (15) day before the anticipated effective dateperiod referred to therein.
(c) A Note Debenture in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 3.06 or repurchase pursuant to Section 3.06 3.07 may be converted only if such holder withdraws its election in accordance with Section 3.08(d3.09(d). A holder of Notes Debentures is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes its Debentures to Common Stock, and only then to the extent such Notes Debentures are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated MaturityBusiness Day immediately preceding July 15, 2023, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into cash and fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at constituting a Unit (the “Conversion Rate Obligation”), subject to the Company’s right to elect to deliver cash or a combination of cash and Common Stock in effect at lieu of Common Stock then constituting a portion of such timeUnit pursuant to Section 15.03, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company after the quarter ended October 3, 2004 Fiscal Quarter (and only during such fiscal quarterFiscal Quarters) commencing after June 30, 2005, if the Last Reported Sale Per Share Unit Value exceeds 120% of the then-effective Conversion Price for the Common Stock for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130immediately preceding Fiscal Quarter (it being understood for purposes of this Section 15.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used);
(ii) during the five Business Day period immediately following any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of the Notes for each day of such Measurement Period was less than 98% of the Per Note Unit Value on such date; provided that no conversion pursuant to this clause (ii) may be made after July 15, 2018, if on any Trading Day during the Measurement Period, the Per Share Unit Value is more than 100%, but less than 120% of the Conversion Price on such last Trading Day;
(iiiii) in the event that the Company calls the Notes if such Note has been called for redemption, at any time prior to on or after the date the notice of redemption has been given until the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventdate; or
(iiiiv) as provided in Section (b) of this Section 15.01.
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company Trustee (or other conversion agent appointed by the Company) shall promptly deliver to the Company and the Trustee (or other Conversion Agent appointed by if the CompanyTrustee is not the conversion agent) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0316.03, and the Company shall also publicly announce such information by publication and publish it on the Company’s Web site or through such other public medium as it may use at such timeweb site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other conversion agent appointed by the Company) shall have no obligation to determine the Trading Price under this Section 15.01 unless the Company has requested such a determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the Per Note Unit Value. If such evidence is provided, the Company shall instruct the Trustee (or other conversion agent) to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the Per Note Unit Value; provided that the Trustee shall be under no duty or obligation to make the calculations described in Section 15.01(a)(ii) hereof or to determine whether the Notes are convertible pursuant to such section. For the avoidance of doubt, the Company shall make the calculations described in Section 15.01(a)(ii), using the Trading Price provided by the Trustee. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a15.01(a)(i) hereofand Section 15.01(a)(ii) hereof (including without limitation the calculation or determination of the Conversion Price, the Closing Sale Price and the Trading Price), and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, provided that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a15.01(a)(i) and Section 15.01(a)(ii) hereof.
(b) In addition, if:
(i) (A) the Company Citizens distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 45 days of the record date for the determination of the stockholders entitled to receive such distribution) to subscribe for or purchase shares of Common Stock Stock, at a price per share less than the Last Reported average of the Closing Sale Price on the Trading Day immediately preceding the declaration date of the distributionCommon Stock for the ten Trading Days immediately preceding, but not including, the date such distribution is first publicly announced by the Company, or (B) the Company Citizens distributes to all holders of its Common Stock assets (including cash)Stock, cash or other assets, debt securities or rights to purchase securities its securities, where the Fair Market Value of the Company, which such distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10Common Stock exceeds 5% of the Last Reported Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distributiondistribution is first publicly announced by Citizens, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company Citizens gives notice to the holders of such distribution, which shall be not less than 20 Business Days days prior to the Ex-Dividend Record Date for such distribution, until the earlier of the close of business on the fourth Business Day immediately preceding, but not including, the Ex-Dividend Record Date or the date the Company Citizens publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversionconversion (as if such holder had held a number of shares equal to the Conversion Rate multiplied by 0.768), neither any adjustment to the Conversion Rate will be made nor will a holder of a Note have the ability to convert pursuant to this Section 15.01(b); or
(ii) the Company Citizens consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash cash, securities or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d)property, then the Notes may be surrendered for conversion at any time from and after the date 15 fifteen (15) days prior to the anticipated effective date of the transaction and ending on and including the date 15 fifteen (15) days after the anticipated effective date consummation of the transaction (or, if transaction. If such transaction also results in holders having constitutes a Designated Event, the right Notes may be surrendered for conversion until the corresponding Designated Event Repurchase Date. In such an event, a holder of Notes may elect to exercise its option to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date)all or a portion of such holder’s Notes pursuant to Section 3.05. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication and posted on its Web web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective dateday.
(c) A Note in respect of which a holder is electing to exercise its option to require the Company to repurchase such holder’s Notes upon a Fundamental Change Designated Event pursuant to Section 3.05 3.05, or repurchase at the option of the holder pursuant to Section 3.06 3.06, may be converted only if such holder withdraws its election in accordance with Section 3.08(d)3.05(c) or Section 3.08, respectively. A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Units, subject to the Company’s right to settle the related Common StockStock portion of the Conversion Obligation partly or wholly in cash pursuant to Section 15.03, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Sources: First Supplemental Indenture (Citizens Communications Co)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated MaturityJuly 15, 2023, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into cash and fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at constituting a Unit (the “Conversion Rate in effect at such timeObligation”), by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company after the quarter ended October 3, 2004 Fiscal Quarter (and only during such fiscal quarterFiscal Quarters) commencing after September 30, 2003, if the Last Reported Sale Per Share Unit Value exceeds 120% of the then-effective Conversion Price for the Common Stock for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130immediately preceding Fiscal Quarter (it being understood for purposes of this Section 15.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used);
(ii) during the five Business Day period immediately following any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of the Notes for each day of such Measurement Period was less than 98% of the Per Note Unit Value on such date; provided that no conversion pursuant to this clause (ii) may be made after July 15, 2018, if on any Trading Day during the Measurement Period, the Per Share Unit Value is more than 100%, but less than 120% of the Conversion Price on such last Trading Day;
(iiiii) in the event that the Company calls the Notes if such Note has been called for redemption, at any time prior to on or after the date the notice of redemption has been given until the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventdate; or
(iiiiv) as provided in Section (b) of this Section 15.01.
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company Trustee (or other conversion agent appointed by the Company) shall promptly deliver to the Company and the Trustee (or other Conversion Agent appointed by if the CompanyTrustee is not the conversion agent) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0316.03, and the Company shall also publicly announce such information by publication and publish it on the Company’s Web site or through such other public medium as it may use at such timeweb site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other conversion agent appointed by the Company) shall have no obligation to determine the Trading Price under this Section 15.01 unless the Company has requested such a determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the Per Note Unit Value. If such evidence is provided, the Company shall instruct the Trustee (or other conversion agent) to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the Per Note Unit Value; provided that the Trustee shall be under no duty or obligation to make the calculations described in Section 15.01(a)(ii) hereof or to determine whether the Notes are convertible pursuant to such section. For the avoidance of doubt, the Company shall make the calculations described in Section 15.01(a)(ii), using the Trading Price provided by the Trustee. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a15.01(a)(i) hereofand Section 15.01(a)(ii) hereof (including without limitation the calculation or determination of the Conversion Price, the Closing Sale Price and the Trading Price), and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, provided that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a15.01(a)(i) and Section 15.01(a)(ii) hereof.
(b) In addition, if:
(i) (A) the Company Citizens distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 45 days of the record date for the determination of the stockholders entitled to receive such distribution) to subscribe for or purchase shares of Common Stock Stock, at a price per share less than the Last Reported average of the Closing Sale Price on the Trading Day immediately preceding the declaration date of the distributionCommon Stock for the ten Trading Days immediately preceding, but not including, the date such distribution is first publicly announced by the Company, or (B) the Company Citizens distributes to all holders of its Common Stock assets (including cash)Stock, cash or other assets, debt securities or rights to purchase securities its securities, where the Fair Market Value of the Company, which such distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10Common Stock exceeds 5% of the Last Reported Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distributiondistribution is first publicly announced by Citizens, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company Citizens gives notice to the holders of such distribution, which shall be not less than 20 Business Days days prior to the Ex-Dividend Date Time for such distribution, until the earlier of the close of business on the second Business Day immediately preceding, but not including, the Ex-Dividend Date Time or the date the Company Citizens publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversionconversion (as if such holder had held a number of shares equal to the Conversion Rate multiplied by 0.768), neither any adjustment to the Conversion Rate will be made nor will a holder of a Note have the ability to convert pursuant to this Section 15.01(b); or
(ii) the Company Citizens consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash cash, securities or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d)property, then the Notes may be surrendered for conversion at any time from and after the date 15 fifteen (15) days prior to the anticipated effective date of the transaction and ending on and including the date 15 fifteen (15) days after the anticipated effective date consummation of the transaction (or, if transaction. If such transaction also results in holders having constitutes a Designated Event, the right Notes may be surrendered for conversion until the corresponding Designated Event Repurchase Date. In such an event, a holder of Notes may elect to exercise its option to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date)all or a portion of such holder’s Notes pursuant to Section 3.05. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication and posted on its Web web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective dateday.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Sources: First Supplemental Indenture (Citizens Communications Co)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, Indenture the holder of any Note Security shall have the right, at such holder’s 's option, to convert the principal amount Original Principal Amount of the NoteSecurity, or any portion of such principal amount Original Principal Amount which is a multiple of $1,000, into fully paid and non-assessable nonassessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note Security so to be converted in whole or in part, together with any required funds, only under the circumstances described in this Section 15.01 11.01 and in the manner provided in Section 15.0211.02. The Company may elect Notwithstanding any other provision of the Securities or this Indenture, all Holders' rights with respect to conversion of the Securities and the Company's obligation to deliver cash in lieu of shares of Common Stock. In additionStock at the Conversion Rate upon such conversion (the "Conversion Obligation"), are subject, in their entirety, to the Company may Company's right, in its sole and absolute discretion, to elect to amend the Indenture satisfy such Conversion Obligation in any manner permitted pursuant to Section 15.02(g11.03.
(b) to allow Securities may be surrendered for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence into shares of one Common Stock in integral multiples of the following events:$1,000 Original Principal Amount
(i) during any fiscal calendar quarter of the Company after the quarter ended October 3commencing prior to August 15, 2004 2028 (and only during such fiscal calendar quarter) ), if the Last Reported Sale Price for of the Common Stock for at least 20 Trading Days during the in a period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal calendar quarter equals is more than 130% of the Conversion Price as of the last day of such previous calendar quarter and
(ii) at any time after August 15, 2028 and prior to the Stated Maturity if, the Last Reported Sale Price of the Common Stock is greater than or exceeds equal to 130% of the Conversion Price on any day after August 15, 2028.
(c) Securities may be surrendered for conversion into shares of Common Stock in integral multiples of $1,000 Original Principal Amount at any time during the five Business Day period after any five consecutive Trading Day period in which the Trading Price of the Securities for each day of such last five Trading Day period was less than 98% of the product of the Last Reported Sale Price and the Conversion Rate as of each such Trading Day;. Notwithstanding the foregoing, if, on the date of any conversion pursuant to this Section 11.01(c), the Last Reported Sale Price of the Common Stock is between 100% and 130% of the Conversion Price as of such date, the Holders of Securities surrendered for conversion shall receive, in lieu of Common Stock based on the Conversion Rate, cash or Common Stock or a combination of cash and Common Stock, at the Company's option, with a value equal to the Accreted Principal Amount of Securities plus accrued and unpaid interest, if any, including Contingent Interest and Additional Interest, if any, as of the Conversion Date ("Principal Value Conversion"). If a Holder surrenders its Securities for a Principal Value Conversion, the Company shall notify such Holder by the second Trading Day following the Conversion Date whether the Company will pay such Holder all or a portion of the Accreted Principal Amount plus accrued and unpaid Contingent Interest and Additional Interest, if any, in cash, Common Stock or a combination of cash and Common Stock, and in what percentage. Any Common Stock delivered upon a Principal Value Conversion will be valued at the Applicable Stock Price. The Company will pay such Holder any portion of the Accreted Principal Amount plus accrued and unpaid Contingent Interest and Additional Interest, if any, to be paid in cash and deliver Common Stock with respect to any portion of the Accreted Principal Amount plus accrued and unpaid Contingent Interest and Additional Interest, if any, to be paid in Common Stock, no later than the fifth Business Day following the determination of the Applicable Stock Price. In connection with any conversion pursuant to this Section 11.01(c), the Trustee shall not have any obligation to determine the Trading Price of the Securities unless the Company has requested such determination and the Company shall have no obligation to make such request unless a Holder provides the Company with reasonable evidence that the Trading Price is less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time, the Company shall instruct the Trustee to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate as of such Trading Day.
(iid) Any Securities called for redemption under Article 10 hereof may be surrendered for conversion into shares of Common Stock in the event that the Company calls the Notes for redemption, integral multiples of $1,000 Original Principal Amount at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that , even if the Securities are called for redemption not otherwise convertible at such time.
(e) Securities may be converted following such an event; or
(iii) as provided surrendered for conversion into shares of Common Stock in Section (b) integral multiples of this Section 15.01.$1,000 Original Principal Amount
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver elects to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes distribute to all holders of its Common Stock Stock
(A) rights or warrants entitling them (to purchase, for a period expiring within 60 days of the date of the such distribution) to subscribe for or purchase shares of , Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date of the distribution, or for such distribution or
(B) the Company distributes to all holders of Common Stock assets (including cash)assets, debt securities or rights to purchase securities of the Company's securities, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 105% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) if the Company consolidates with or merges with or into another Person or is a party to a consolidation, merger or binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the shares of Common Stock is would be converted into cash cash, securities or other property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described set forth in Section 15.01(d11.10(ii), then the Notes may be surrendered for conversion at any time from and after the date that is 15 days prior to the anticipated effective date of the transaction and ending on and including the date until 15 days after the anticipated actual effective date of the such transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notesconstitutes a Fundamental Change, until the applicable Fundamental Change Repurchase Purchase Date). The Board of Directors shall determine ) and, at the anticipated effective date time of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects right to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of Security into shares of Common Stock equal shall be changed into a right to convert such Security into the Conversion Rate per $1,000 principal kind and amount of Notescash, an additional number securities or other property of shares of Common Stock (the “Additional Shares”) as described below, subject to Company or another person that the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that Holder would have received if the Stock Price paid in connection with Holder had converted such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate Security immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate transaction as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of 11.10.
(f) Securities may be surrendered for conversion into shares of Common Stock issuable upon conversion exceed 17.3040 per in integral multiples of $1,000 principal amount of NotesOriginal Principal Amount, subject to adjustments during any period in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
which (i) the numerator credit rating assigned to the Securities by Standard & Poor's Ratings Services, a division of which will be The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and its successors (i"S&P") in the case of a share exchangeis below BB+, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator credit rating assigned to the Securities by ▇▇▇▇▇'▇ Investors Services and its successors ("▇▇▇▇▇'▇") is below Ba1 or (iii) the Securities by are no longer rated by at least one of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of controlS&P or Moody's.
Appears in 1 contract
Sources: Indenture (Lockheed Martin Corp)
Right to Convert. (a) Subject to and in compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder's option, at any time on or after September 15, 2026, through the close of business on the scheduled Trading Day immediately preceding the Maturity Date, to convert the principal amount of any such Notes, or any portion of such principal amount which is $1,000 or an integral multiple thereof at the Conversion Rate then in effect.
(b) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note each Holder shall have the right, at such holder’s Holder's option, at any time following the initial issuance of the Notes hereunder through 5:00 P.M., New York City time on September 14, 2026, to convert the principal amount of the Noteany such Notes, or any portion of such principal amount which is a $1,000 or an integral multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) thereof at the Conversion Rate then in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following eventseffect:
(i) during any fiscal quarter of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) commencing after December 31, 2006, if the Last Reported Sale Price for Sales Prices of the Common Stock for at least 20 Trading Days during the period of the 30 consecutive Trading Days ending on the last Trading Day of the previous preceding fiscal quarter equals is greater than or exceeds 130equal to 120% of the applicable Conversion Price on such last Trading Day;
(ii) during the five Business Day period immediately following a ten consecutive Trading Day period (the "MEASUREMENT PERIOD") in which the event that Trading Price per $1,000 principal amount of notes, as determined following a request by a Holder in accordance with Section 13.01(f), for each day of such Measurement Period was less than 98% of the Company calls product of the Notes Last Reported Sales Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day;
(iii) if such Note has been called for redemption, redemption pursuant to Article X hereof at any time prior to the close of business 5:00 P.M., New York City time, on the second Business Day immediately preceding the applicable Redemption Date; provided that only those Notes that are called for redemption may be converted following , after which time such an event; orHolder's right to convert shall expire unless the Company defaults in the payment of the Redemption Price;
(iiiiv) as provided in Section (b) of this Section 15.0113.01(c).
(ic) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of In the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, ifthat:
(i) (A) the Company distributes elects to issue to all or substantially all the holders of its Common Stock certain rights or warrants entitling them (to purchase, for a period expiring within 60 days of after the date of the distribution) to subscribe for or purchase , shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price Sales Prices of the a share of Common Stock for the five ten consecutive Trading Days prior to but excluding Day period ending on the effective date Trading Day preceding the announcement of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.issuance; or
Appears in 1 contract
Sources: Indenture (Lecroy Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated MaturityMay 15, 2034, the holder of any Note Debenture shall have the right, at such holder’s 's option, to convert the principal amount of the NoteDebenture, or any portion of such principal amount which is a an integral multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note Debenture so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes Debentures shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) (A) during any fiscal calendar quarter of the Company commencing after the quarter ended October 3June 30, 2004 and before March 31, 2029 (and only during such fiscal calendar quarter) if the Last Reported Sale Price for the Common Stock for at least 20 twenty (20) Trading Days during the period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the previous fiscal calendar quarter equals is greater than or exceeds equal to 130% of the Conversion Price on such last Trading DayDay and (B) at any time on or after April 1, 2029 if the Last Reported Sale Price for the Common Stock on any date on or after March 31, 2029 is greater than or equal to 130% of the Conversion Price;
(ii) in the event that the Company calls any or all of the Notes Debentures for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption DateDate (unless the Company fails to pay the Redemption Price); provided that only those Notes Debentures that are called for redemption may be converted following such an event; or;
(iii) during the five (5) Business Day period after any five (5) consecutive Trading Day period in which the Trading Price per Debenture, as determined following a request by a holder in accordance with the procedures described below, for each day of that period is less than 98% of the product of the Conversion Rate and the Last Reported Sale Price of the Common Stock for each day during such period; provided that if, on the date of any conversion pursuant to this Section 15.01(a)(iii) that is on or after May 15, 2029, the Last Reported Sale Price of the Common Stock is greater than the Conversion Price but less than 130% of the Conversion Price, then holders of Debentures surrendered for conversion will receive, in lieu of Common Stock based on the Conversion Rate, an amount in cash equal to the principal amount of the Debentures converted, plus accrued and unpaid Interest, to the Conversion Date;
(iv) as provided in Section (b) of this Section 15.01.; or
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(iv) (A) if the Company distributes to all holders of its Common Stock rights or warrants entitling them obtains a credit rating for the Debentures from both Moody's Investors Service, Inc. (for a period expiring within 60 days of the date of the distribution"MOODY'S") to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or and Standard & Po▇▇'▇ ▇▇tings Services (B) the Company distributes to all holders of Common Stock assets (including cash"STANDARD & POOR'S"), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion then at any time on and after when (1) the date that the Company gives notice long-term credit rating assigned to the holders of such distribution, which shall be not less than 20 Business Days prior Debentures by Moody's or Standard & Poor's is two or more levels below the credit rating initially assigned to the Ex-Dividend Date for such distributionDebentures; (2) both Moody's and Standard & Poor's have discontinued, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date withdrawn or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” suspended their ratings with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustmentDebentures; or (3) either Moody's or Standard & Poor's has discontinued, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior withdrawn or suspended its rating with respect to the adjustment giving rise Debentures and the remaining rating is two or more levels below the credit rating initially assigned to the Conversion Rate adjustment Debentures (references to Moody's and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject Standard & Poor's include any successors to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(dthose entities), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.; or
Appears in 1 contract
Sources: Indenture (Wild Oats Markets Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Supplemental Indenture, prior to the close each Holder of business on the Stated Maturity, the holder of any Note Notes shall have the right, at such holderHolder’s option, to convert the principal amount of the Noteany such Notes, or any portion of such principal amount which that is $1,000 or a multiple of $1,0001,000 thereof, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the applicable Conversion Rate then in effect at such timeeffect, by surrender (x) prior to the close of business on the Business Day immediately preceding July 15, 2013, only upon satisfaction of one or more of the Note so to be converted in whole or in part, together with any required funds, under the circumstances conditions described in this Section 15.01 clauses (i) through (iv) below and in (y) on or after July 15, 2013, at any time prior to the manner provided in Section 15.02. The Company may elect to deliver cash in lieu close of shares of Common Stock. In additionbusiness on the second Scheduled Trading Day immediately preceding October 15, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one 2013 irrespective of the following eventsconditions described in clauses (i) through (iv) below:
(i) Prior to the close of business on the Business Day immediately preceding July 15, 2013, a Holder of Notes may surrender all or a portion of its Notes for conversion during any fiscal quarter of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) commencing after December 27, 2008 if the Last Reported Sale Price for of the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous immediately preceding fiscal quarter equals is greater than or exceeds equal to 130% of the applicable Conversion Price in effect on such last each applicable Trading Day;.
(ii) in the event that the Company calls the Notes for redemption, at any time prior Prior to the close of business on the second Business Day immediately preceding July 15, 2013, a Holder of Notes may surrender its Notes for conversion during the Redemption Date; provided that only those five Business Day period after any 10 consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes that are called for redemption may be converted following such an event; or
(iii) as provided in Section (b) of accordance with the procedures set forth in this Section 15.01.
4.01(a)(ii), for each Trading Day of such period was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate (i) whether the “Trading Price Condition”). The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Notes in accordance with this Section 4.01(a)(ii) unless requested by the Company, and the Company shall have no obligation to make such request unless a Holder of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be convertible as a result less than 98% of the occurrence product of an event specified in clause (i) above and, if the Notes shall be so convertibleLast Reported Sale Price of the Common Stock and the applicable Conversion Rate. Promptly after receiving such evidence, the Company shall promptly deliver instruct the Bid Solicitation Agent to determine the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever Trading Price of the Notes shall become convertible pursuant beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to this Section 15.0198% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate. If the Company does not so instruct the Bid Solicitation Agent to obtain bids when required, the Trading Price per $1,000 principal amount of the Notes will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate on each day the Company fails to do so. If the Trading Price Condition has been met, the Company or, at the Company’s requestshall so notify Holders, the Trustee in and the name and Conversion Agent. If, at any time after the expense Trading Price Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the Companyproduct of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance toNotes, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve and the Trustee of its duties pursuant to Section 15.01(a) hereofConversion Agent.
(biii) In addition, ifIf the Company elects to:
(i) (A) the Company distributes issue to all or substantially all holders of its Common Stock certain rights or warrants entitling them (to purchase, for a period expiring within 60 45 days of after the announcement date of the distribution) to subscribe for or purchase such issuance, shares of Common Stock at a price per share less than the average of the Last Reported Sale Price Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date announcement of the distribution, or such issuance; or
(B) the Company distributes distribute to all or substantially all holders of Common Stock assets (including cash)assets, debt securities or certain rights to purchase securities of the Company, which distribution has a per share value value, as reasonably determined by the Company’s Board of Directors and set forth in a Board Resolution Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either each case, the Notes may be surrendered for conversion Company shall notify the Holders of the Notes, in the manner provided in Section 10.2 of the Original Indenture, at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such distributionissuance. Once the Company has given such notice, Holders may surrender Notes for conversion at any time until the earlier of the close of business on the Business Day immediately preceding, but not including, the prior to such Ex-Dividend Date or the date the Company publicly announces Company’s announcement that such issuance or distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made , even if the holder Notes are not otherwise convertible at such time. Notwithstanding the foregoing, a Holder of Notes may not convert its Notes under the provisions of this Section 4.01(a)(iii) if such Holder will otherwise participate in such distribution without conversion; or
(ii) issuance or distribution, at the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties same time and assets in each case pursuant to which upon the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes same terms as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent as if such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) Holder held, for each $1,000 principal amount of the definition thereof that occurs prior to August 15Notes, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate effect immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05Ex-Dividend Date.
(eiv) Notwithstanding If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs, regardless of whether a Holder has the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, right to require the Company mayto purchase the Notes pursuant to Article 3 hereof, in lieu of increasing or if the Conversion Rate by Additional Shares as described in Section 15.01(d)Company is a party to a consolidation, elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Controlmerger, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a binding share exchange, consolidationor sale, merger transfer or binding share exchangelease of all or substantially all of the Company’s assets, in each case, pursuant to which the Common Stock is would be converted into cash, securities or other propertyassets, Holders may surrender Notes for conversion at any time from or after the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive date which is 30 Scheduled Trading Days prior to but excluding the anticipated effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive transaction until 35 Trading Days commencing on after the trading day next succeeding the actual effective date of such transaction (or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Purchase Date). The Company shall notify Holders and the Trustee as promptly as practicable following the date the Company publicly announces such transaction, but in no event less than 35 Scheduled Trading Days prior to the anticipated effective date of such transaction (it being understood and agreed that the public acquirer change announcement by the Company of controlany such transaction or event shall satisfy in full the Company’s obligation to so notify Holders of the Notes).
(b) Notes may not be converted after the close of business on the second Scheduled Trading Day immediately preceding October 15, 2013.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, on or prior to the close of business on the Stated MaturityApril 14, 2024, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) 1,000 at the Conversion Rate in effect at such timetime (the “Conversion Obligation”), by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect Prior to deliver cash in lieu of shares of Common Stock. In additionMarch 15, 2010, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during the five Business Day period immediately following any fiscal quarter five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of the Company after the quarter ended October 3, 2004 (and only during Notes for each day of such fiscal quarter) if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130Measurement Period was less than 98% of the product of the Closing Sale Price and the applicable Conversion Price Rate on such last Trading Day;
(ii) in the event that the Company calls the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an event; or
(iiiii) as provided in Section (b) of this Section 15.01.
(i) whether 15.01(b). On and after March 15, 2010, the Notes shall be convertible as at any time in accordance with Section 15.01. Neither the conversion agent appointed by the Company nor the Trustee shall have an obligation to determine the Trading Price under this Section 15.01 unless the Company has requested such a result determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the occurrence product of an event specified in clause (i) above and, if the Notes shall be so convertibleClosing Sale Price and the applicable Conversion Rate. If such evidence is provided, the Company shall promptly deliver to instruct the Trustee (or other Conversion Agent appointed by conversion agent) to determine the Company) written notice thereof. Whenever Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Closing Sale Price and the applicable Conversion Rate; provided that the Trustee shall become be under no duty or obligation to make the calculations described in this Section 15.01(a) or to determine whether the Notes are convertible pursuant to this Section 15.01such section. For the avoidance of doubt, the Company orshall make the calculations described in this Section 15.01(a)(i), at using the Company’s request, Trading Price provided by the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such noticeTrustee. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to this Section 15.01(a) hereof), and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.0115.01(a); provided, however, provided that nothing herein shall be construed to relieve the Trustee of its duties pursuant to this Section 15.01(a) hereof).
(b) In addition, ifif prior to April 15, 2010:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 45 days of the applicable record date for the determination of the stockholders entitled to receive such distribution) to subscribe for or purchase shares of Common Stock Stock, at a price per share less than the Last Reported average of the Closing Sale Price on for the ten (10) Trading Day Days immediately preceding preceding, but not including, the declaration date of such distribution is first publicly announced by the distribution, Company; or (B) the Company distributes to all holders of its Common Stock assets (including cash)Stock, cash or other assets, debt securities or rights to purchase securities its securities, where the Fair Market Value of the Company, which such distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding Common Stock exceeds 10% of the Last Reported Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distributiondistribution is first publicly announced by the Company, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days days prior to the Ex-Dividend Date Time for such distribution, until the earlier of the close of business on the second Business Day immediately preceding, but not including, the Ex-Dividend Date Time or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price Rate will be made if the holder Holder will otherwise participate in such distribution on an as-converted basis in its capacity as a Noteholder without conversionconversion in which case a Holder of a Note will not have the ability to convert pursuant to this Section 15.01(b); or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash cash, securities or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d)property, then the holders shall have the right to convert Notes may be surrendered for conversion at any time from and after beginning 30 scheduled Trading Days prior to the date 15 days prior to announced by the Company as the anticipated effective date of the transaction and ending on until and including the date 15 days after the anticipated effective date of the transaction related Designated Event Repurchase Date (or, if such transaction also results in holders having does not constitute a Fundamental Change, until and including the right to require date which is 15 days after the earlier of (a) the actual effective date of such transaction or (b) the date that the Company to repurchase Notes, until announces that the transaction will not take place). If such transaction constitutes a Fundamental Change Repurchase Dateof the type specified in Section 15.01(d), a holder converting Notes during the period specified in Section 15.01(d) shall also be entitled to any Additional Shares payable in connection with such conversion pursuant to Section 15.01(d). The Company will notify holders of Notes and the Trustee at least 30 scheduled Trading Days prior to the anticipated effective date of such transaction. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based beginning on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares right to convert the Notes into cash and Common Stock will be determined by convert into a right to convert the Notes into cash and Reference Property pursuant to, and in accordance with, Section 15.06. If such transaction also constitutes a Designated Event, a Noteholder may require the Company by to repurchase all or a straight-line interpolation between the number portion of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the such holder’s Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.053.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s 's option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash deliver, in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described thereincash or a combination of cash and shares of its Common Stock. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company after the quarter ended October 3June 30, 2004 (and only during such fiscal quarter) if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130% of the Conversion Price on such last Trading Day;
(ii) during the five Business Day period immediately after any five consecutive Trading Day period in which the Trading Price per $1,000 principal amount of the Notes for each day of such five Business Day measurement period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on the applicable date and the Conversion Rate; provided, however, that the Notes shall not be convertible pursuant to this Section 15.01(a)(ii) after May 1, 2019 if on any Trading Day during such measurement period the Last Reported Sale Price of the Common Stock was between 100% and 130% of the then current Conversion Price of the Notes.
(iii) in the event that the Company calls any or all of the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an event; or;
(iiiiv) as provided in Section (b) of this Section 15.01; or
(v) during any period in which (1) the credit rating assigned to the Notes by either Standard & Poor's Ratings Services ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇") is three or more rating subcategories below B+ by S&P or B1 by Moody's, or (2) the notes are no longer rated by at least one of, or are suspended by both S&P and Moody's.
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s 's request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0318.03, and the Company shall also publicly announce such information by publication on the Company’s 's Web site or through such other public medium as it may choose to use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other Conversion Agent appointed by the Company) shall have no obligation to determine the Trading Price for purposes of Section 15.01(a)(ii) unless the Company has requested in writing such a determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Notes is less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. Such evidence shall be in writing and delivered by the holder to the Treasurer of the Company by fax or certified or express mail to the address or fax number specified in Section 18.03 hereof. Such request shall state that the holder has a reasonable belief that the Trading Price per $1,000 principal amount of Notes is less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate (which request shall also include the evidence with respect thereto) and shall state that the holder is requesting that the Company request the Trustee (or other Conversion Agent appointed by the Company) to determine whether or not the Notes are convertible into Common Stock pursuant to Section 15.01(a)(ii) of this Indenture. If such notice and evidence is provided, the Company shall instruct the Trustee (or other Conversion Agent) in writing to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until, and only until, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s 's duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 45 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s 's Board of Directors and set forth in a Board Resolution exceeding 105% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash stock, other securities or other property other than securities, or if a transaction described in clause assets (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(dincluding cash), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date)transaction. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may choose to use at that time not later than two Business Days prior to such 15th day before the anticipated effective dateday.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, at any time prior to the close of business on the Stated MaturityJune 15, 2034, the holder of any Note Debenture shall have the right, at such holder’s 's option, to convert the principal amount each $1,000 Original Principal Amount of the Note, or any portion of such principal amount which is a multiple of $1,000Debentures and integral multiples thereof, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, subject to Section 15.01(d) and subject to the Company's ability to elect to deliver cash or a combination of cash and Common Stock in lieu of Common Stock pursuant to Section 15.03, by surrender of the Note Debenture so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes Debentures shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) (A) during any fiscal quarter of the Company commencing after the quarter ended October 3July 31, 2004 (and only during such fiscal quarter) 2004, if the Last Reported Sale Price for the Common Stock for at least 20 twenty (20) Trading Days during the period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the previous preceding fiscal quarter equals is greater than or exceeds 130equal to 131.30% of the Conversion Price on such last Trading Day; provided that once such threshold is met, the Debenture will thereafter be convertible at any time at the option of the holder, through the Stated Maturity;
(ii) in the event that the Company calls any or all of the Notes Debentures for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption DateDate after which time the right to convert such Debentures will expire, unless the Company fails to pay the Redemption Price; provided that only those Notes Debentures that are called for redemption may be converted following such an event;
(iii) during the five (5) Business Day period after any five (5) consecutive Trading Day period in which the Trading Price per Debenture, as determined following a request by a holder in accordance with the procedures described below, for each day of that period is less than 98% of the product of the Conversion Rate and the Last Reported Sale Price of the Common Stock for each day during such period; provided that if, on the date of any conversion pursuant to this Section 15.01(a)(iii), that is on or after June 15, 2029, the Last Reported Sale Price of the Common Stock is greater than the Conversion Price but less than 131.30% thereof, then the holders of Debentures surrendered for conversion will receive, in lieu of Common Stock based on the Conversion Rate, an amount in cash, shares of Common Stock, or a combination thereof, equal to the Accreted Principal Amount of the Debentures converted, plus accrued and unpaid Interest, to but excluding the Conversion Date (a "PRINCIPAL VALUE CONVERSION"). Any Common Stock delivered upon a Principal Value Conversion will be valued at the average of the Last Reported Sale Prices of Common Stock for a five Trading Day period starting on the third Trading Day following the Conversion Date; or
(iiiiv) as provided in Section (b) of this Section 15.01.
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible In connection with any conversion pursuant to this Section 15.01, the Company or, at the Company’s request15.01(a)(iii), the Trustee in shall have no obligation to obtain the name and at bids necessary for the expense Company to determine the Trading Price of the Company, shall notify Debentures unless the holders of the event triggering such convertibility in the manner provided in Section 19.03Company has requested it to do so, and the Company shall also publicly announce have no obligation to make such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the request unless a holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with provides the Company and to request with reasonable evidence that the assistance Trading Price per Debenture is less than 98% of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% product of the Last Reported Sale Price of the Common Stock on and the Trading Day immediately preceding the declaration date for Conversion Rate. At such distribution, then, in either casetime, the Notes may be surrendered for conversion at any time on and after Company will instruct the date that Trustee to obtain the Company gives notice to bids (in the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction manner described in clause (iv) of the definition of Fundamental Change occurs Trading Price) beginning on or prior to August 15, 2014 the next Trading Day and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, each successive Trading Day until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate Trading Price per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction Debenture is greater than $169.74 or less than $57.79 (subject in each case equal to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row 98% of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average product of the Last Reported Sale Price of the Common Stock for and the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of controlConversion Rate.
Appears in 1 contract
Sources: Indenture (Kellwood Co)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into cash and fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu Upon conversion of shares of Common Stock. In additiona Note, the Company may elect to amend shall deliver the Indenture pursuant to Settlement Amount as set forth in Section 15.02(g) to allow for payment upon conversion as described therein15.02. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company after the fiscal quarter ended October 3January 29, 2004 2005 (and only during such fiscal quarter) if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130120% of the Conversion Price on such last Trading Day;
(ii) during the five Business Day period after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures described below, for each day of that Measurement Period is less than 98% of the product of the Conversion Rate and the Last Reported Sale Price of the Common Stock for each day during such Measurement Period;
(iii) in the event that the Company calls the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an event; or
(iiiiv) as provided in Section clause (b) of this Section 15.01.
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. In connection with any conversion upon satisfaction of sub-clause (a)(ii) of this Section 15.01, the Bid Solicitation Agent will have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination; and the Company will have no obligation to make such request unless a beneficial holder of a Note provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the number of shares of Common Stock issuable upon conversion of $1,000 principal amount of the Notes. At such time, the Company will instruct the Bid Solicitation Agent to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the trading price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the number of shares of Common Stock issuable upon conversion of $1,000 principal amount of the Notes. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0317.03, and the Company shall also publicly announce such information by publication on the Company’s Web web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all or substantially all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all or substantially all holders of Common Stock assets (including cash), debt securities or rights or warrants to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(iiA) a Change of Control occurs as defined in clause (i) of the Company consolidates with definition thereof or merges with or into another Person or is (B) a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes Change of all or substantially all Control occurs as defined in clause (iii) of its properties and assets in each case the definition thereof pursuant to which the Common Stock is converted would be convertible into cash cash, securities or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d)property, then the Notes may be surrendered for conversion at any time from and after the date which is 15 days prior to the anticipated effective date of the transaction and ending on until and including the date which is 15 days after the anticipated actual effective date of the such transaction (or, if such transaction also results in holders having the right to require the Company to repurchase the Notes, until the Fundamental Change Repurchase Date). If any such transaction is terminated prior to its effective date, the surrender of any Notes for conversion pursuant to this Section 15.01(b)(ii) and the right to convert shall be revoked and such Notes shall be returned by the Company to the holder thereof. The Company shall notify Holders and the Trustee at the same time the Company publicly announces such transaction (but in no event less than 15 days prior to the anticipated effective date of such transaction). The Board of Directors shall determine the anticipated effective date of the transaction, in the case of transactions described in Section 15.01(b), and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d3.08(e). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to into cash and Common Stock, if any, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (ivSection 15.01(b) of the definition thereof that occurs on or prior to August December 15, 2014 pursuant to which 2011 and 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made received by Holders of Common Stock in respect of dissenters’ appraisal rights) in connection with such Fundamental Change transaction consists of cash or cash, securities (or other property) property that are is not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, the Conversion Rate for any such holder will Notes surrendered for conversion shall be entitled to receive, in addition to increased by a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall . The Conversion Rate will not be issued. No Additional Shares shall be issuable increased under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the date on which such transaction becomes effective (the “effective date”) and the price (the “Stock Price”) paid per share of the Common Stock in such transaction. If holders of Common Stock receive only cash in such transaction, the Stock Price will be the cash amount paid per share. Otherwise, the Stock Price will be the average of the Last Reported Sale Prices of the Common Stock on the five Trading Days immediately prior to but not including the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. The exact Stock Prices and effective dates may not be set forth in Schedule II, in which case:
(i) if the Stock Price is between two Stock Price amounts in the table or the effective date is between two effective dates in the table, the number of Additional Shares will be determined by straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year;
(ii) if the Stock Price is in excess of $58.00 per share, subject to adjustments as set forth in Section 15.05, no Additional Shares will be added to the Conversion Rate; or
(iii) if the Stock Price is less than $16.17 per share, subject to adjustments as set forth in Section 15.05, no Additional Shares will be added to the Conversion Rate. The maximum amount of Additional Shares payable is 14.2714 per $1,000 principal amount of Notes. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 61.8429 per $1,000 principal amount of NotesNotes or 6,184,290 shares of Common Stock in the aggregate, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d) and subject to Section 15.02, if a Holder elects to convert Notes in connection with a transaction described in Section 15.01(b) where the Conversion Rate would be increased by a number of Additional Shares pursuant to Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, at its option and in lieu of increasing the Conversion Rate by such number of Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation Settlement Amount such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (bSection 15.01(b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (iA) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (iiB) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Sources: Indenture (Dress Barn Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, funds under the circumstances described in this Section 15.01 and 14.01, in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein14.02. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter commencing after September 30, 2005, if the Closing Sale Price exceeds 120% of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) if the Last Reported Sale Conversion Price for the Common Stock for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous immediately preceding fiscal quarter equals or exceeds 130% (it being understood for purposes of this Section 14.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used and such last calculation shall give effect to any event referred to in Section 14.06 or 14.07 occurring during such 30 Trading DayDay period);
(ii) prior to July 15, 2010, during the five Business Day period immediately after any five consecutive Trading Day period in which the event that the Company calls Trading Price per $1,000 principal amount of the Notes for redemption, each day of such five consecutive Trading Day period was less than 98% of the product of the Closing Sale Price on the applicable date and the Conversion Rate;
(iii) at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventor after July 15, 2010; or
(iiiiv) as provided in Section 14.01(b) hereof. Upon receipt by the Conversion Agent of a demand for conversion from a Noteholder pursuant to clause (bi) of this Section, the Conversion Agent shall inform the Company of such request and the Company shall thereupon furnish to the Conversion Agent an Officer’s Certificate stating whether the Notes are then convertible pursuant to clause (i) of this Section 15.01.
and setting forth in reasonable detail the Company’s basis for such determination. Upon receipt of such Officer’s Certificate, if the Company has determined that the Notes are then convertible in accordance with clause (i) of this Section, the Conversion Agent shall, based solely on its review of the information contained in such Officer’s Certificate, confirm or refute the Company’s determination. If the Conversion Agent shall confirm that the Notes are then convertible pursuant to clause (i) of this Section, then the Conversion Agent shall promptly deliver written notice thereof to the Company (and, if the Conversion Agent is other than the Trustee, to the Trustee). In any event, the Company shall be obligated at all times to determine whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereofof this Section. Whenever the Notes shall become convertible pursuant to this Section 15.0114.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0315.03, and the Company shall also publicly announce such information by publication and publish it on the Company’s Web site or through such other public medium as it may use at such timeweb site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other Conversion Agent appointed by the Company) shall be entitled at its sole discretion have no obligation to consult with determine the Trading Price under clause (ii) of this Section 14.01 unless the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, has requested such a determination; and the Company agrees, if requested by shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trustee, to cooperate with, Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Closing Sale Price and provide assistance tothe Conversion Rate. If such evidence is provided, the Trustee in carrying out its duties under this Section 15.01; provided, however, Company shall request that nothing herein shall be construed to relieve the Trustee (or other Conversion Agent) determine the Trading Price of its duties pursuant the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to Section 15.01(a) hereof98% of the product of the Closing Sale Price and the Conversion Rate.
(b) In addition, if:
(i) (A) the Company distributes to all or substantially all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the declaration date of the such distribution) to subscribe for or purchase shares of Common Stock Stock, at a price per share less than the Last Reported average of the Closing Sale Price on for the ten (10) Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the declaration date the Company publicly announces that for such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; distribution, or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Sources: Indenture (Nii Holdings Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, on or prior to the close of business on the Stated MaturityApril 14, 2024, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company Fiscal Quarter commencing after the quarter ended October 3June 30, 2004 (and only during such fiscal quarter) 2004, if the Last Reported Closing Sale Price for of the Common Stock exceeds 120% of the then-effective Conversion Price for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous immediately preceding Fiscal Quarter (it being understood for purposes of this Section 15.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used); provided, that if the Notes became convertible under this subclause (i) during any fiscal quarter equals or exceeds 130quarter, then the Notes will remain convertible at all times thereafter until the close of business on April 14, 2024;
(ii) during the five Business Day period immediately following any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of the Notes for each day of such Measurement Period was less than 98% of the product of the Closing Sale Price and the number of shares of Common Stock issuable upon conversion of $1,000 principal amount of the Notes; provided that no conversion pursuant to this clause (ii) may be made after April 15, 2019, if on any Trading Day during the Measurement Period, the Closing Sale Price is more than 100%, but less than 120% of the Conversion Price on such last Trading Day;
(iiiii) in the event that the Company calls the Notes if such Note has been called for redemption, at any time prior to on or after the date the notice of redemption has been given until the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventdate; or
(iiiiv) after the date, if ever, on which either ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Services (“S&P”) assigns an initial credit rating to the Notes (a) the credit rating assigned to the Notes by either Moody’s or S&P is three or more rating subcategories below the initial credit rating assigned by Moody’s or S&P, as the case may be, or (b) any period in which the Notes are no longer rated by either Moody’s or S&P, as the case may be if such ratings agency had previously rated the Notes.
(v) as provided in Section (b) of this Section 15.01.
(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company (or other conversion agent appointed by the Company) shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.0119.03, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.in
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, funds under the circumstances described in this Section 15.01 and 14.01, in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein14.02. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter commencing after March 31, 2004, if the Closing Sale Price exceeds 120% of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) if the Last Reported Sale Conversion Price for the Common Stock for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous immediately preceding fiscal quarter equals or exceeds 130% (it being understood for purposes of this Section 14.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used and such last calculation shall give effect to any event referred to in Section 14.06 or 14.07 occurring during such 30 Trading DayDay period);
(ii) during each of the five Business Day period immediately after any five consecutive Trading Day period in which the event Trading Price per $1,000 principal amount of the Notes for each day of such five Trading Day period was less than 98% of the product of the Closing Sale Price on the applicable date and the Conversion Rate; provided, however, the Notes shall not be convertible pursuant to this Section 14.01(a)(ii) after February 1, 2029 if on any Trading Day during such five Trading Day period the Closing Sale Price was between 100% and 120% of the then current Conversion Price (it being understood for purposes of this Section 14.01(a)(ii) that the Company calls Conversion Rate in effect at the Notes close of business on each of the five consecutive Trading Days should be used and such calculation shall give effect to any event referred to in Section 14.06 or 14.07 occurring during such five Trading Day period);
(iii) if such Note has been called for redemption, at any time prior to on or after the date the notice of redemption has been given until the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventdate; or
(iiiiv) as provided in Section (b) of this Section 15.01.
14.01. Upon receipt by the Conversion Agent of a demand for conversion from a Noteholder pursuant to clause (i) of this Section, the Conversion Agent shall inform the Company of such request and the Company shall thereupon furnish to the Conversion Agent an Officer’s Certificate stating whether the Notes are then convertible pursuant to clause (i) of this Section and setting forth in reasonable detail the Company’s basis for such determination. Upon receipt of such Officer’s Certificate, if the Company has determined that the Notes are then convertible in accordance with clause (i) of this Section, the Conversion Agent shall, based solely on its review of the information contained in such Officer’s Certificate, confirm or refute the Company’s determination. If the Conversion Agent shall confirm that the Notes are then convertible pursuant to clause (i) of this Section, then the Conversion Agent shall promptly deliver written notice thereof to the Company (and, if the Conversion Agent is other than the Trustee, to the Trustee). In any event, the Company shall be obligated at all times to determine whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereofof this Section. Whenever the Notes shall become convertible pursuant to this Section 15.0114.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0315.03, and the Company shall also publicly announce such information by publication and publish it on the Company’s Web site or through such other public medium as it may use at such timeweb site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other Conversion Agent appointed by the Company) shall be entitled at its sole discretion have no obligation to consult with determine the Trading Price under clause (ii) of this Section 14.01 unless the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, has requested such a determination; and the Company agrees, if requested by shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trustee, to cooperate with, Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Closing Sale Price and provide assistance tothe Conversion Rate. If such evidence is provided, the Trustee in carrying out its duties under this Section 15.01; provided, however, Company shall request that nothing herein shall be construed to relieve the Trustee (or other Conversion Agent) determine the Trading Price of its duties pursuant the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to Section 15.01(a) hereof98% of the product of the Closing Sale Price and the Conversion Rate.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 45 days of the record date for the determination of the stockholders entitled to receive such distribution) to subscribe for or purchase shares of Common Stock Stock, at a price per share less than the Last Reported average of the Closing Sale Price on for the ten (10) Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be first publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common StockCompany, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.or
Appears in 1 contract
Sources: Indenture (Nii Holdings Inc)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s 's option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, funds under the circumstances described in this Section 15.01 and 14.01, in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein14.02. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter commencing after September 30, 2003, if the Closing Sale Price exceeds 120% of the Company after the quarter ended October 3, 2004 (and only during such fiscal quarter) if the Last Reported Sale Conversion Price for the Common Stock for at least 20 Trading Days during in the period of 30 consecutive Trading Days Day period ending on the last Trading Day of the previous immediately preceding fiscal quarter equals or exceeds 130% (it being understood for purposes of this Section 14.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used and such last calculation shall give effect to any event referred to in Section 14.05 or 14.06 occurring during such 30 Trading DayDay period);
(ii) during each of the five Business Day period immediately after any five consecutive Trading Day period in which the event Trading Price per $1,000 principal amount of the Notes for each day of such five Trading Day period was less than 95% of the product of the Closing Sale Price on the applicable date and the Conversion Rate; PROVIDED, however, the Notes shall not be convertible pursuant to this Section 14.01(a)(ii) after July 15, 2028 if on any Trading Day during such five Trading Day period the Closing Sale Price was between 100% and 120% of the then current Conversion Price (it being understood for purposes of this Section 14.01(a)(ii) that the Company calls Conversion Rate in effect at the Notes close of business on each of the five consecutive Trading Days should be 51 used and such calculation shall give effect to any event referred to in Section 14.05 or 14.06 occurring during such five Trading Day period);
(iii) if such Note has been called for redemption, at any time prior to on or after the date the notice of redemption has been given until the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an eventdate; or
(iiiiv) as provided in Section (b) of this Section 15.01.
14.01. Upon receipt by the Trustee of a demand for conversion from a Noteholder pursuant to this Section, the Trustee (ior other conversion agent appointed by the Company) shall, on behalf of the Company, confirm (based on information provided by the Company) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above above, but, in any event, the Company shall be obligated at all times to determine whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) of this Section, and, if the Notes shall be so convertible, the Company Trustee (or other conversion agent appointed by the Company) shall promptly deliver to the Company and the Trustee (or other Conversion Agent appointed by if the CompanyTrustee is not the conversion agent) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.0114.01, the Company or, at the Company’s 's request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0315.03, and the Company shall also publicly announce such information by publication and publish it on the Company’s Web site or through such other public medium as it may use at such time's web site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee (or other conversion agent appointed by the Company) shall be entitled at its sole discretion have no obligation to consult with determine the Trading Price under clause (ii) of this Section 14.01 unless the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, has requested such a determination; and the Company agrees, if requested by shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trustee, to cooperate with, Trading Price per $1,000 principal amount of Notes would be less than 95% of the product of the Closing Sale Price and provide assistance tothe number of shares of Common Stock issuable upon conversion of $1,000 principal amount of Notes. If such evidence is provided, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein Company shall be construed to relieve instruct the Trustee (or other conversion agent) to determine the Trading Price of its duties pursuant the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to Section 15.01(a) hereof95% of the product of the Closing Sale Price and the number of shares issuable upon conversion of $1,000 principal amount of the Notes.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 45 days of the record date for the determination of the stockholders entitled to receive such distribution) to subscribe for or purchase shares of Common Stock Stock, at a price per share less than the Last Reported average of the Closing Sale Price on for the ten Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date). The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be first publicly announced by the Company by publication on its Web site Company, or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.52
Appears in 1 contract
Sources: Indenture (Jetblue Airways Corp)
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 14.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein14.02. The Notes shall be convertible into shares of the Company’s Common Stock only during one of the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company after the quarter ended October 3December 31, 2004 (and only during such fiscal quarter) if the Last Reported Sale Closing Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130120% of the Conversion Price on such last Trading Day;
(ii) during the five Business Days immediately following any five consecutive Trading Day period in which the Trading Price per $1,000 original principal amount of the Notes (as determined following a request by a Noteholder in accordance with the procedures described below) for each day of that period was less than 98% of the product of the Closing Price of the Company’s Common Stock and the current Conversion Rate of the Notes on each such day; provided that a Noteholder may not convert any Notes in reliance on this Section 14.01(a)(ii) after November 1, 2011 if on any Trading Day during such five consecutive Trading Day period the Closing Price of the Company’s Common Stock was between the applicable Conversion Price of the Notes and 120% of the current Conversion Price of the Notes;
(iii) in the event that the Company calls the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes (or the portion thereof) that are called for redemption may be converted following such an event; or
(iiiiv) as provided in Section (b) of this Section 15.01.
(i14.01. The Company or its designated agent shall determine on a daily basis during the time period specified in Section 14.01(a)(i) or, following a request by a Noteholder in accordance with the procedures described below, 14.01(a)(ii), whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) or (ii) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.0114.01 (as determined in accordance with this Section 14.01), the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.0317.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such timewill issue a press release containing this information. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination; and the Company shall have no obligation to make such request unless a Noteholder delivers written notice to the Company at the address or telecopier number set forth in Section 17.03 stating that such Noteholder is requesting that the Trustee make such determination set forth in Section 14.01(a)(ii), with such notice being accompanied with reasonable evidence that (x) the Person is a Noteholder as of the date the notice is delivered and (y) the Trading Price per $1,000 original principal amount of Notes would be less than 98% of the product of the Closing Price of the Company’s Common Stock and the current Conversion Rate of the Notes. At such time, the Company will be required to instruct the Trustee to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 original principal amount of Notes is greater than or equal to 98% of the product of the Closing Price of the Company’s Common Stock and the current Conversion Rate of the Notes. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a14.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.0114.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a14.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Closing Price on the Trading Day immediately preceding the declaration record date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a resolution of the Board Resolution of Directors exceeding 10% of the Last Reported Sale Closing Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, preceding the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place, even if the Notes are not otherwise convertible at such time; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a consolidation, merger, binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets and, in each case case, and pursuant to which thereto all or substantially all of the Company’s Common Stock is or assets are exchanged for, converted into cash into, acquired for or property constitutes solely the right to receive cash, securities or other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d)property, then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the such transaction and ending on and including the date 15 days after the anticipated actual effective date of the such transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental second Business Day immediately preceding the applicable Change of Control Repurchase Date). The Company will not be required to convert Notes tendered pursuant to this Section 14.01(b)(ii) prior to the effective date of the transaction. If any consolidation, merger, binding share exchange, conveyance, transfer, sale, lease or other disposition is terminated prior to its effective date, the surrender for conversion and the right to convert will be revoked and any Notes tendered in connection therewith will be returned to the applicable Noteholders. The Board of Directors shall determine the anticipated such actual effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated actual effective date.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change of Control pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 1514.
(d) If and only to the extent a holder timely elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof Control that occurs on or prior to August 15November 1, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made 2011, then except as set forth in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National MarketSection 14.01(e), such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h14.02(g) and 15.02(i14.02(h); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 111.10 or less than $57.79 32.17 (subject in each case to adjustment as described below), no Additional Shares shall be issuedissuable. No Additional Shares shall be issuable under this Section 15.01(d14.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change of Control transaction. Notwithstanding this Section 14.01(d), if the Company elects to adjust the Conversion Rate pursuant to Section 14.01(e), the provisions of Section 14.01(e) will apply in lieu of the provisions of this Section 14.01(d). The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II I hereto, based on the effective date of such Fundamental Change of Control transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates effective dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change of Control transaction means the date that a Fundamental Change of Control becomes effective. If the holders of the Common Stock receive only cash in such Change of Control transaction, the Stock Price will be the cash amount paid per share of Common Stock; otherwise, the Stock Price will be the average of the Closing Prices of the Company’s Common Stock on the five consecutive Trading Days prior to but not including the effective date of such Change of Control transaction. The Stock Prices set forth in the first row of the table in Schedule II I hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.0514.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.0514.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 31.0849 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.0514.05.
(e) Notwithstanding the provisions of Section 15.01(d14.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d14.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a14.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (iA) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into into, exchanged for or constitutes solely the right to receive cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (iiB) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Closing Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Closing Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change Public Acquirer Change of controlControl.
Appears in 1 contract
Right to Convert. (a) Subject to and upon compliance with the provisions of this Indenture, prior to the close of business on the Stated Maturity, the holder of any Note shall have the right, at such holder’s option, to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 15.01 and in the manner provided in Section 15.02. The Company may elect to deliver cash in lieu of shares of Common Stock. In addition, the Company may elect to amend the Indenture pursuant to Section 15.02(g) to allow for payment upon conversion as described therein. The Notes shall be convertible only during the following periods upon the occurrence of one of the following events:
(i) during any fiscal quarter of the Company after the quarter ended October 3March 31, 2004 (and only during such fiscal quarter) if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter equals or exceeds 130% of the Conversion Price on such last Trading Day;
(ii) in the event that the Company calls the Notes for redemption, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; provided that only those Notes that are called for redemption may be converted following such an event; or
(iii) as provided in Section (b) of this Section 15.01.
(i. The Company or its designated agent shall determine on a daily basis during the time period specified in Section 15.01(a)(i) whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Notes shall be so convertible, the Company shall promptly deliver to the Trustee (or other Conversion Agent appointed by the Company) written notice thereof. Whenever the Notes shall become convertible pursuant to this Section 15.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 19.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. The Trustee shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Trustee’s duties and obligations pursuant to Section 15.01(a) hereof, and the Company agrees, if requested by the Trustee, to cooperate with, and provide assistance to, the Trustee in carrying out its duties under this Section 15.01; provided, however, that nothing herein shall be construed to relieve the Trustee of its duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price on the Trading Day immediately preceding the declaration date of the distribution, or (B) the Company distributes to all holders of Common Stock assets (including cash), debt securities or rights to purchase securities of the Company, which distribution has a per share value as determined by the Company’s Board of Directors and set forth in a Board Resolution exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Date or the date the Company publicly announces that such distribution will not take place; provided that no holder of a Note will have the ability to convert and no adjustment to the Conversion Price will be made if the holder will otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case pursuant to which the Common Stock is converted into cash or property other than securities, or if a transaction described in clause (iv) of the definition of Fundamental Change occurs on or prior to August 15, 2014 and results in an increase in the Conversion Rate of the Notes as described in Section 15.01(d), then the Notes may be surrendered for conversion at any time from and after the date 15 days prior to the anticipated effective date of the transaction and ending on and including the date 15 days after the anticipated effective date of the transaction (or, if such transaction also results in holders having the right to require the Company to repurchase Notes, until the Fundamental Change Repurchase Date)transaction. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the holders and shall be publicly announced by the Company by publication on its Web site or through such other public medium as it may use at that time not later than two Business Days prior to such 15th day before the anticipated effective dateday.
(c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Fundamental Change pursuant to Section 3.05 or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.08(d). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 15.
(d) If and only to the extent a holder elects to convert Notes in connection with a Fundamental Change pursuant to clause (iv) of the definition thereof that occurs prior to August 15, 2014 pursuant to which 10% or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such Fundamental Change transaction consists of cash or securities (or other property) that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, such holder will be entitled to receive, in addition to a number of shares of Common Stock equal to the Conversion Rate per $1,000 principal amount of Notes, an additional number of shares of Common Stock (the “Additional Shares”) as described below, subject to the Company’s conversion settlement election as described in Sections 15.02(h) and 15.02(i); provided that if the Stock Price paid in connection with such transaction is greater than $169.74 or less than $57.79 (subject in each case to adjustment as described below), no Additional Shares shall be issued. No Additional Shares shall be issuable under this Section 15.01(d) unless the holder elects to convert the Notes in connection with such Fundamental Change transaction. The number of Additional Shares issuable in connection with the conversion of Notes as described in the immediately preceding paragraph will be determined by reference to the table attached as Schedule II hereto, based on the effective date of such Fundamental Change transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two Effective Dates in the table, the number of Additional Shares will be determined by the Company by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two effective dates, as applicable, based on a 365-day year. The “effective date” with respect to a Fundamental Change transaction means the date that a Fundamental Change becomes effective. The Stock Prices set forth in the first row of the table in Schedule II hereto will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.05. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Conversion Rate adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in Section 15.05. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 17.3040 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 15.05.
(e) Notwithstanding the provisions of Section 15.01(d), in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares as described in Section 15.01(d), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, holders of Notes will be entitled to convert their Notes (subject to the satisfaction of the conditions to conversion set forth in Sections 15.01(a) and (b) above) into a number of shares of Public Acquirer Common Stock by adjusting the Conversion Rate in effect immediately before the Public Acquirer Change of Control by a fraction:
(i) the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted into cash, securities or other property, the average value of all cash and any other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock or (ii) in the case of any other Public Acquirer Change of Control, the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to but excluding the effective date of such Public Acquirer Change of Control, and
(ii) the denominator of which will be the average of the Last Reported Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the trading day next succeeding the effective date of such public acquirer change of control.
Appears in 1 contract
Sources: Indenture (Alliant Techsystems Inc)