Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding: (A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof; (B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof; (C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the change in the Exchange Consideration as described in Section 7.07; (D) except as otherwise described above and below under this Section 7.05, rights issued pursuant to a stockholder rights plan adopted by the Guarantor; or (E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x ▇▇▇ ▇▇▇ - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property distributed with respect to each outstanding Ordinary Share on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSs, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. (ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period after, and including, the effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period.
Appears in 1 contract
Sources: Indenture (Amarin Corp Plc\uk)
Spin Offs and Other Distributed Property. (i) If the Guarantor Issuer distributes shares of the Capital Stock of the GuarantorIssuer, evidences of its indebtedness, other assets or property of the Guarantor Issuer or rights, options or warrants to acquire the GuarantorIssuer’s Capital Stock or other securities of the Guarantor Issuer (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a7.5(A) hereof or Section 7.05(b7.5(B) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d7.5(D) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the change in the Exchange Consideration as described in Section 7.077.7;
(D) except as otherwise described above and below under this Section 7.057.5, rights issued pursuant to a stockholder rights plan adopted by the GuarantorIssuer; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii7.5(C)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x ▇▇▇ ▇▇▇ - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the GuarantorIssuer’s Board of Directors) of the Distributed Property distributed with respect to each outstanding Ordinary Share on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSs, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i7.5(C)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(iii) With respect to an adjustment pursuant to this Section 7.05(c7.5(C) where there has been a payment of a dividend or other distribution on the Ordinary Shares of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the GuarantorIssuer, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period after, and including, the effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period.
Appears in 1 contract
Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor’s Share Capital, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Share Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition Merger Event resulting in the change in the Exchange Consideration as described in Section 7.07;
(D) except as otherwise described above and below under this Section 7.057.05(h), rights issued pursuant to a stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × ▇▇▇ ▇▇▇ - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of DirectorsIssuer in good faith) of the Distributed Property distributed with respect to each outstanding Ordinary Share in issue on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSsOrdinary Shares, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs Ordinary Shares equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of shares of Share Capital of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Share Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Share Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share (determined by reference to the definition of “Last Reported Sale Price” set forth in Section 1.01 hereof as if references therein to Ordinary Shares were to such Share Capital or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the effective date Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. The adjustment to the Exchange Rate under the preceding paragraph will be determined on the last Trading Day of the Valuation Period, but given effect as of the Ex-Dividend Date for the Spin-Off; provided that (x) in respect of any exchange of Notes for which Physical Settlement is applicable, if the relevant Exchange Date occurs during the Valuation Period, references in this Section 7.05(c)(ii) with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Exchange Date in determining the Exchange Rate and (y) in respect of any exchange of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such exchange and within the Valuation Period, references in the preceding paragraph with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Trading Day in determining the Exchange Rate as of such Trading Day. In addition, if the Ex-Dividend Date for such Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of an exchange of Notes, references in the preceding paragraph to 10 Trading Days will be deemed to be replaced, solely in respect of that exchange, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last VWAP Trading Day of such Observation Period. If any dividend or distribution that constitutes a Spin-Off is not so paid, the Exchange Rate shall be decreased, effective as of the date the Guarantor’s Board of Directors determines not to pay such dividends or distributions, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 7.05(c) (and subject in all respect to Section 7.05(h)), rights, options or warrants distributed by the Guarantor to all holders of the Ordinary Shares entitling them to subscribe for or purchase shares of the Guarantor’s Share Capital, including the Ordinary Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (A) are deemed to be transferred with such Ordinary Shares; (B) are not exercisable; and (C) are also issued in respect of future issuances of the Ordinary Shares, shall be deemed not to have been distributed for purposes of this Section 7.05(c) (and no adjustment to the Exchange Rate under this Section 7.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 7.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 7.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been purchased without exercise by any holders thereof, upon such final purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share purchase price received by a holder or holders of the Ordinary Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Ordinary Shares as of the date of such purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated (or deemed to have expired or been terminated pursuant to the immediately preceding sentence) without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued (to the extent any adjustment to the Exchange Rate was made in connection with such issuance). For purposes of Section 7.05(a) hereof, Section 7.05(b) hereof and this Section 7.05(c), if any dividend or distribution to which this Section 7.05(c) applies includes one or both of:
(A) a dividend or distribution of Ordinary Shares to which Section 7.05(a) hereof also applies (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 7.05(b) hereof also applies (the “Clause B Distribution”), then, in either case, (i) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 7.05(c) applies (the “Clause C Distribution”) and any Exchange Rate adjustment required to be made under this Section 7.05(c) with respect to such Clause C Distribution shall then be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 7.05(b) hereof with respect thereto shall then be made, except that, if determined by the Guarantor, (A) the “Ex-Dividend Date” of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (B) any Ordinary Shares included in the Clause A Distribution or the Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 7.05(b) hereof, and (iii) the Clause A Distribution, if any, shall be deemed to immediately follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Guarantor, (A) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution, and any Ordinary Shares included in the Clause A distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such Effective Date within the meaning of Section 7.05(a) hereof.
Appears in 1 contract
Sources: Indenture (Jazz Pharmaceuticals PLC)
Spin Offs and Other Distributed Property. (iA) If the Guarantor Borrower distributes shares of the Capital Stock of the Guarantorits Common Stock, evidences of its indebtedness, Indebtedness or other assets or property of the Guarantor Borrower, or rights, options or warrants to acquire Stock of the Guarantor’s Capital Stock Borrower or other securities of the Guarantor (the “Distributed Property”) Borrower, to all or substantially all holders of the Ordinary SharesCommon Stock, excluding:
(A1) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to distributions and issuances described in Section 7.05(a2.9(f)(i) hereof or Section 7.05(b2.9(f)(ii) hereof, as applicable;
(B2) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to described in Section 7.05(d2.9(f)(iv) hereof;
(C3) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in Spin-Offs for which the change in the Exchange Consideration as described provisions set forth in Section 7.07;
(D2.9(f)(iii)(B) except as otherwise described above and below under this Section 7.05, rights issued pursuant to a stockholder rights plan adopted by the Guarantorhereof will apply; or
(E4) Spin-Offs as to which the provisions distributions of Reference Property in a transaction described in Section 7.05(c)(ii) hereof shall apply, 2.9(i). then the Exchange Conversion Rate will be increased based on the following formula: ER1 = ER0 CR1 =CR0 x ▇▇▇ ▇▇▇ - –FMV where: ER0 where CR0 = the Exchange Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for of such distribution; ER1 CR1 = the Exchange Conversion Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate of such distribution; SP0 = the average Volume Weighted Average Price of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) Common Stock over the 10 five (5) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for of such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property shares of Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding Ordinary Share share of Common Stock on the Ex-Dividend Date for of such distribution. If Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder Lender will receive, in respect of for each $1,000 principal amount of Notes it holdsthe aggregate Conversion Amount as would apply to the Loans held by such Lender on the record date for the distribution, at the same time and upon the same terms as holders of the ADSsCommon Stock, the amount and kind of shares of Stock, evidences of Indebtedness, assets or property, rights, options or warrants to acquire Stock of the Distributed Property Borrower or other securities that such Holder Lender would have received if such Holder Lender had owned a number of ADSs shares of Common Stock equal to the Exchange Conversion Rate in effect on the Ex-Dividend Date for the such distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i2.9(f)(iii)(A) will shall become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Conversion Rate shall will be readjusted decreased to be the Exchange Conversion Rate that would then be in effect if such dividend or distribution had not been declared. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the issued rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.
(iiB) With respect to an adjustment pursuant to this Section 7.05(c2.9(f)(iii) where there has been a payment of a dividend or other distribution on the Ordinary Shares Common Stock of shares of Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the GuarantorBorrower, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distributionthe transaction) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (as determined by the Borrower) (a “Spin-Off”), the Exchange Conversion Rate will be increased based on the following formula: ER1 = ER0 CR1 =CR0 x FMV0 + MP0 MP0 where: ER0 where CR0 = the Exchange Conversion Rate in effect immediately prior to the Open end of Business on the Ex-Dividend Date for the Spin-OffValuation Period; ER1 CR1 = the Exchange Conversion Rate in effect immediately after the Open end of Business on the Ex-Dividend Date for the Spin-OffValuation Period; FMV0 = the average Volume Weighted Average Price of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Ordinary Shares Common Stock applicable to one Ordinary Share share of Common Stock (determined for purposes of the definition of the Volume Weighted Average Price as if such Stock or similar equity interest were the Common Stock) over the first 10 ten (10) consecutive Trading Day period after, and including, the effective date Ex-Dividend Date of the such Spin-Off (the “Valuation Period”); and MP0 = the average Volume Weighted Average Price of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) Common Stock over the Valuation Period. The adjustment to the Conversion Rate under this Section 2.9(f)(iii) will occur as of the close of business on the last Trading Day of the Valuation Period; provided that for any Trading Day that falls within the Valuation Period, references to “10” in the portion of this Section 2.9(f)(iii) related to Spin-Offs shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. If any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately decreased, effective as of the date the Borrower determines not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced. For purposes of this Section 2.9(f) (and subject in all respect to Section 2.9(f)(ix)), rights, options or warrants distributed by the Borrower to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Borrower’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be Transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 2.9(f)(iii) (and no adjustment to the Conversion Rate under this Section 2.9(f)(iii) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 2.9(f)(iii). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 2.9(f)(iii) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued. For the purposes of Section 2.9(f)(i), Section 2.9(f)(ii), and this Section 2.9(f)(iii), if any dividend or distribution to which this Section 2.9(f)(iii) applies also includes one or both of:
(1) a dividend or distribution of shares of Common Stock to which Section 2.9(f)(i) hereof applies (a “Clause A Distribution”); or
(2) a dividend or distribution of rights, options or warrants to which Section 2.9(f)(ii) hereof applies (a “Clause B Distribution”) (any such distribution, a “Multi-Clause Distribution”), then (i) the portion of such Multi-Clause Distribution that is not a Clause A Distribution or a Clause B Distribution will be deemed to be a dividend or distribution to which this Section 2.9(f)(iii) applies (a “Clause C Distribution”), and any Conversion Rate adjustment required by this Section 2.9(f)(iii) with respect to such Clause C Distribution shall then be made, (ii) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 2.9(f)(i) and Section 2.9(f)(ii) with respect thereto shall then be made, except that, if determined by the Borrower (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date” within the meaning of Section 2.9(f)(i) or “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 2.9(f)(ii).
Appears in 1 contract
Sources: Senior Subordinated Convertible Loan Agreement (Melinta Therapeutics, Inc. /New/)
Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the change in the Exchange Consideration as described in Section 7.07;
(D) except as otherwise described above and below under this Section 7.05, rights issued pursuant to a stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x ▇▇▇ ▇▇▇ SP0 SP0 - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property distributed with respect to each outstanding Ordinary Share on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSs, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period after, and including, the effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period.
Appears in 1 contract
Sources: Indenture (Amarin Corp Plc\uk)
Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor’s Share Capital, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Share Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options distributions or warrants issuances as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition Merger Event resulting in the change in the Exchange Consideration as described in Section 7.07;
(D) except as otherwise described above and below under this Section 7.05, rights issued pursuant to a stockholder shareholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × ▇▇▇ ▇▇▇ - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property distributed with respect to each outstanding Ordinary Share in issue on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSsOrdinary Shares, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs Ordinary Shares equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. If the Guarantor issues rights, options or warrants that are only exercisable upon the occurrence of certain triggering events, then the Issuer will not adjust the Exchange Rate pursuant to this Section 7.05(c)(i) until the earliest of those triggering events occurs. In addition, in the case of any distribution of rights, options or warrants, to the extent such rights, options or warrants expire unexercised, the Exchange Rate shall be immediately readjusted to the Exchange Rate that would then be in effect had the increase made for the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered upon exercise of such rights, options or warrants.
(ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of shares of Share Capital of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Share Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Share Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share (determined by reference to the definition of “Last Reported Sale Price” set forth in Section 1.01 hereof as if references therein to Ordinary Shares were to such Share Capital or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the effective date Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. The adjustment to the Exchange Rate under the preceding paragraph will be determined on the last Trading Day of the Valuation Period, but given effect as of the Ex-Dividend Date for the Spin-Off; provided that in respect of any exchange of Notes during the Valuation Period, references in this Section 7.05(c)(ii) with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Exchange Date in determining the Exchange Rate. If the Ex-Dividend Date of the Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of an exchange of Notes, references in the preceding paragraph to 10 Trading Days will be deemed to be replaced, solely in respect of that exchange, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last VWAP Trading Day of such Observation Period. If any dividend or distribution that constitutes a Spin-Off is not so paid, the Exchange Rate shall be decreased, effective as of the date the Guarantor’s Board of Directors determines not to pay such dividends or distributions, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 7.05(c) (and subject in all respect to Section 7.05(h)), rights, options or warrants distributed by the Guarantor to all holders of the Ordinary Shares entitling them to subscribe for or purchase shares of the Guarantor’s Share Capital, including the Ordinary Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (A) are deemed to be transferred with such Ordinary Shares; (B) are not exercisable; and (C) are also issued in respect of future issuances of the Ordinary Shares, shall be deemed not to have been distributed for purposes of this Section 7.05(c) (and no adjustment to the Exchange Rate under this Section 7.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 7.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 7.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been purchased without exercise by any holders thereof, upon such final purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share purchase price received by a holder or holders of the Ordinary Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Ordinary Shares as of the date of such purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated (or deemed to have expired or been terminated pursuant to the immediately preceding sentence) without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued (to the extent any adjustment to the Exchange Rate was made in connection with such issuance). For purposes of Section 7.05(a) hereof, Section 7.05(b) hereof and this Section 7.05(c), if any dividend or distribution to which this Section 7.05(c) applies includes one or both of:
(A) a dividend or distribution of Ordinary Shares to which Section 7.05(a) hereof also applies (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 7.05(b) hereof also applies (the “Clause B Distribution”), then, in either case, (i) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 7.05(c) applies (the “Clause C Distribution”) and any Exchange Rate adjustment required to be made under this Section 7.05(c) with respect to such Clause C Distribution shall then be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 7.05(b) hereof with respect thereto shall then be made, except that, if determined by the Guarantor, (A) the “Ex-Dividend Date” of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (B) any Ordinary Shares included in the Clause A Distribution or the Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 7.05(b) hereof, and (iii) the Clause A Distribution, if any, shall be deemed to immediately follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Guarantor, (A) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution, and any Ordinary Shares included in the Clause A distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such Effective Date within the meaning of Section 7.05(a) hereof.
Appears in 1 contract
Sources: Indenture (Horizon Pharma PLC)
Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the change in the Exchange Consideration as described in Section 7.07;
(D) except as otherwise described above and below under this Section 7.05, rights issued pursuant to a stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × ▇▇▇ ▇▇▇ - – FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property distributed with respect to each outstanding Ordinary Share on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSs, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period after, and including, the effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. If a Holder exchanges a Note, Cash Settlement or Combination Settlement applies to such Note, and the first VWAP Trading Day of the Observation Period applicable to such Note occurs after the first Trading Day of the Valuation Period for a Spin-Off, but on or before the last Trading Day of the Valuation Period for such Spin-Off, the reference in the above definition of “FMV” to “10” shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of such Spin-Off to, but excluding, the first VWAP Trading Day of such Observation Period. If a Holder exchanges a Note, Cash Settlement or Combination Settlement applies to such Note, and one or more VWAP Trading Days of the Observation Period applicable to such Note occurs on or after the Ex-Dividend Date for a Spin-Off, but on or prior to the first Trading Day of the Valuation Period for such Spin-Off, such Observation Period will be suspended on the first such Trading Day and will resume immediately after the first Trading Day of the Valuation Period for such Spin-Off, and the reference in the above definition of “FMV” to “10” shall be deemed replaced with a reference to “one” (1).
Appears in 1 contract
Sources: Indenture (Amarin Corp Plc\uk)
Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor’s Share Capital, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Share Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition Merger Event resulting in the change in the Exchange Consideration as described in Section 7.07;
(D) except as otherwise described above and below under this Section 7.05, rights issued pursuant to a stockholder shareholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × ▇▇▇ ▇▇▇ - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property distributed with respect to each outstanding Ordinary Share in issue on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSsOrdinary Shares, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs Ordinary Shares equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of shares of Share Capital of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Share Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Share Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share (determined by reference to the definition of “Last Reported Sale Price” set forth in Section 1.01 hereof as if references therein to Ordinary Shares were to such Share Capital or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the effective date Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. The adjustment to the Exchange Rate under the preceding paragraph will be determined on the last Trading Day of the Valuation Period, but given effect as of the Ex-Dividend Date for the Spin-Off; provided that in respect of any exchange of Notes during the Valuation Period, references in this Section 7.05(c)(ii) with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Exchange Date in determining the Exchange Rate. If the Ex-Dividend Date of the Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of an exchange of Notes, references in the preceding paragraph to 10 Trading Days will be deemed to be replaced, solely in respect of that exchange, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last VWAP Trading Day of such Observation Period. If any dividend or distribution that constitutes a Spin-Off is not so paid, the Exchange Rate shall be decreased, effective as of the date the Guarantor’s Board of Directors determines not to pay such dividends or distributions, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 7.05(c) (and subject in all respect to Section 7.05(h)), rights, options or warrants distributed by the Guarantor to all holders of the Ordinary Shares entitling them to subscribe for or purchase shares of the Guarantor’s Share Capital, including the Ordinary Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (A) are deemed to be transferred with such Ordinary Shares; (B) are not exercisable; and (C) are also issued in respect of future issuances of the Ordinary Shares, shall be deemed not to have been distributed for purposes of this Section 7.05(c) (and no adjustment to the Exchange Rate under this Section 7.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 7.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 7.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been purchased without exercise by any holders thereof, upon such final purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share purchase price received by a holder or holders of the Ordinary Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Ordinary Shares as of the date of such purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated (or deemed to have expired or been terminated pursuant to the immediately preceding sentence) without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued (to the extent any adjustment to the Exchange Rate was made in connection with such issuance). For purposes of Section 7.05(a) hereof, Section 7.05(b) hereof and this Section 7.05(c), if any dividend or distribution to which this Section 7.05(c) applies includes one or both of:
(A) a dividend or distribution of Ordinary Shares to which Section 7.05(a) hereof also applies (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 7.05(b) hereof also applies (the “Clause B Distribution”), then, in either case, (i) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 7.05(c) applies (the “Clause C Distribution”) and any Exchange Rate adjustment required to be made under this Section 7.05(c) with respect to such Clause C Distribution shall then be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 7.05(b) hereof with respect thereto shall then be made, except that, if determined by the Guarantor, (A) the “Ex-Dividend Date” of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (B) any Ordinary Shares included in the Clause A Distribution or the Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 7.05(b) hereof, and (iii) the Clause A Distribution, if any, shall be deemed to immediately follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Guarantor, (A) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution, and any Ordinary Shares included in the Clause A distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such Effective Date within the meaning of Section 7.05(a) hereof.
Appears in 1 contract
Sources: Indenture (Jazz Pharmaceuticals PLC)
Spin Offs and Other Distributed Property. (i) If the Guarantor distributes shares of the Capital Stock of the Guarantor’s Share Capital, evidences of its indebtedness, other assets or property of the Guarantor or rights, options or warrants to acquire the Guarantor’s Share Capital Stock or other securities of the Guarantor (the “Distributed Property”) to all or substantially all holders of the Ordinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 7.05(a) hereof or Section 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 7.05(d) hereof;
(C) any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition Merger Event resulting in the change in the Exchange Consideration as described in Section 7.07;
(D) except as otherwise described above and below under this Section 7.057.05(h), rights issued pursuant to a stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions of Section 7.05(c)(ii) hereof shall apply, then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × ▇▇▇ ▇▇▇ - FMV where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of DirectorsIssuer in good faith) of the Distributed Property distributed with respect to each outstanding Ordinary Share in issue on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder will receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the ADSsOrdinary Shares, the amount and kind of the Distributed Property that such Holder would have received if such Holder had owned a number of ADSs Ordinary Shares equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 7.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares of shares of Share Capital of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor, and such Share Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x × FMV0 + MP0 MP0 where: ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for the Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Share Capital Stock or similar equity interest distributed to holders of the Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period after, and including, the effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the ADSs (divided determined by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period.reference to the
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Sources: Indenture (Jazz Pharmaceuticals PLC)