Adjustment to Conversion Ratio. The denominator of the Conversion Ratio shall be adjusted from time to time as follows: (a) In case the Company shall hereafter pay a dividend (excluding payment of dividends on the Company's Series A Preferred Stock) or make a distribution in Common Stock of the Company to all holders of the outstanding Common Stock of the Company, the denominator of the Conversion Ratio in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such denominator of the Conversion Ratio by a fraction of which the numerator shall be the number of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. (b) In case the Company shall hereafter issue rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase Common Stock at a price per share less than the Current Market Price (as defined below) on the date fixed for determination of stockholders entitled to receive such rights or warrants, the denominator of the Conversion Ratio shall be adjusted so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price, and of which the denominator shall be the number of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that Common Stock is not delivered, after the expiration of such rights or warrants the denominator shall be readjusted to the denominator which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the denominator shall again be adjusted to be the denominator which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. (c) In case the outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the denominator of the Conversion Ratio in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding Common Stock shall be combined into a smaller number of shares of Common Stock, the denominator of the Conversion Ratio in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Company shall, by dividend, or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock (other than a dividend or distribution to which subparagraph (a) of this Section 11.03 applies) or evidences of its indebtedness or assets (including securities, but excluding any rights or warrants referred to in subparagraph (b) of this Section 11.03, and excluding any dividend or distribution (x) in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (y) paid exclusively in cash or (z) referred to in subparagraph (a) of this Section 11.03) (any of the foregoing being hereinafter in this subparagraph (d) referred to as the "Distribution Securities"), then, in each such case, unless the Company elects to reserve such Distribution Securities for distribution to the Holders of the Securities upon the conversion of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the Conversion Shares to which such Holder is entitled, the amount and kind of such Distribution Securities which such Holder would have received if such Holder had, immediately prior to the Record Date for such distribution of the Distribution Securities, converted its Securities into Conversion Shares, the denominator of the Conversion Ratio shall be reduced so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect on the Record Date by a fraction of which the numerator shall be the Current Market Price per share of Common Stock on the Record Date less the fair market value (as determined by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of the Board of Directors or such duly authorized committee thereof, as the case may be), on the Record Date, of the portion of the Distribution Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the then fair market value (as so determined) of the portion of the Distribution Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall have the right to receive upon conversion the amount and kind of Distribution Securities such Holder would have received had such Holder converted each such Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof) determines the fair market value of any distribution for purposes of this subparagraph (d) by reference to the actual or when issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. For purposes of this subparagraph (d) and subparagraphs (a) and (b) of this Section 11.03, any dividend or distribution that includes Common Stock, or rights or warrants to subscribe for or purchase Common Stock, shall be deemed instead to be (i) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such Common Stock or rights or warrants (and any reduction in the denominator of the Conversion Ratio required by this subparagraph (d) with respect to such dividend or distribution shall then be made) immediately followed by (ii) a dividend or distribution of such Common Stock or such rights or warrants (and any further reduction in the denominator of the Conversion Ratio required by subparagraph (a) or (b) of this Section 11.03 with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution as defined in this subparagraph (d) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution" and "the date fixed for such determination" within the meaning of subparagraphs (a) and (b) of this Section 11.03 and (B) any Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date for such determination" within the meaning of subparagraph (a) of this Section 11.03. (e) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any quarterly, semi-annual, annual or other regularly scheduled Cash dividend paid on the Common Stock, and excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, unless the Company elects to reserve such cash for distribution to the Holders of the Securities upon the conversion of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the Conversion Shares to which such Holder is entitled, the amount of cash which such Holder would have received if such Holder had, immediately prior to the Record Date for such distribution of cash, converted its Securities into Conversion Shares, the denominator of the Conversion Ratio shall be reduced so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the Record Date by a fraction of which the numerator shall be the Current Market Price of the Common Stock on the Record Date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be such Current Market Price of the Common Stock, such reduction to become effective immediately prior the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall thereafter have the right to receive upon conversion the amount of cash such Holder would have received had he converted each Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such dividend or distribution had not been declared. (f) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of the Board of Directors or such duly authorized committee thereof, as the case may be) at the last time (the "Expiration Time") tenders or exchanges may be made by holders of Common `Stock pursuant to such offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, the denominator of the Conversion Ratio shall be reduced so that such denominator shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such tender or exchange offer had not been made. (g) The Company may make such reductions in the denominator of the Conversion Ratio, in addition to those required by subparagraphs (a), (b), (c), (d), (e) and (f) of this Section 11.03, as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the denominator of the Conversion Ratio by any amount for any period of time if the period is at least 20 days, the reduction is irrevocable during such period, and the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof) shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive. Whenever the denominator of the Conversion Ratio is reduced pursuant to the preceding sentence, the Company shall mail to Holders of record of the Securities a notice of the reduction at least 15 days prior to the date the reduced denominator of the Conversion Ratio takes effect, and such notice shall state the reduced denominator of the Conversion Ratio and the period it will be in effect. (h) No adjustment in the denominator of the Conversion Ratio shall be required unless such adjustment would require an increase or decrease of at least 1% in the denominator of the Conversion Ratio then in effect; PROVIDED, HOWEVER, that any adjustments which by reason of this subparagraph (h) are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment shall be required. Except as provided in this Section 11.03, the denominator of the Conversion Ratio will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase any of the foregoing. (i) Notwithstanding any other provision of this Section 11.03, in the event that the Shelf Registration Statement is not declared effective by the Commission on or prior to the date that is one year after the date of this Indenture, the denominator of the Conversion Ratio will be decreased by $.15.
Appears in 1 contract
Adjustment to Conversion Ratio. The denominator of the Conversion Ratio shall be adjusted from time to time as follows:
(a) In case the Company shall hereafter pay a dividend (excluding payment of dividends on the Company's Series A Preferred Stock) or make a distribution in Common Stock of the Company to all holders of the outstanding Common Stock of the Company, the denominator of the Conversion Ratio in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such denominator of the Conversion Ratio by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company.
(b) In case the Company shall hereafter issue rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase Common Stock at a price per share less than the Current Market Price (as defined below) on the date fixed for determination of stockholders entitled to receive such rights or warrants, the denominator of the Conversion Ratio shall be adjusted so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that Common Stock is not delivered, delivered after the expiration of such rights or warrants warrants, the denominator shall be readjusted to the denominator which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the denominator shall again be adjusted to be the denominator which would then be in effect if such date fixed for the determination deter- mination of stockholders entitled to receive such rights or warrants had not been fixed.
(c) In case the outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the denominator of the Conversion Ratio in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding Common Stock shall be combined into a smaller number of shares of Common Stock, the denominator of the Conversion Ratio in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend, or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock (other than a dividend or distribution to which subparagraph (a) of this Section 11.03 applies) or evidences of its indebtedness or assets (including securities, but excluding any rights or warrants referred to in subparagraph (b) of this Section 11.03, and excluding any dividend or distribution (x) in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (y) paid exclusively in cash or (z) referred to in subparagraph (a) of this Section 11.03) (any of the foregoing being hereinafter in this subparagraph (d) referred to as the "Distribution Securities"), then, in each such case, unless the Company elects to reserve such Distribution Securities for distribution to the Holders of the Securities upon the conversion of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the Conversion Shares to which such Holder is entitled, the amount and kind of such Distribution Securities which such Holder would have received if such Holder had, immediately prior to the Record Date for such distribution of the Distribution Securities, converted its Securities into Conversion Shares, the denominator of the Conversion Ratio shall be reduced so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect on the Record Date by a fraction of which the numerator shall be the Current Market Price per share of Common Stock on the Record Date less the fair market value (as determined by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of the Board of Directors or such duly authorized committee thereof, as the case may be), on the Record Date, of the portion of the Distribution Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the then fair market value (as so determined) of the portion of the Distribution Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall have the right to receive upon conversion the amount and kind of Distribution Securities such Holder would have received had such Holder converted each such Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof) determines the fair market value of any distribution for purposes of this subparagraph (d) by reference to the actual or when issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. For purposes of this subparagraph (d) and subparagraphs (a) and (b) of this Section 11.03, any dividend or distribution that includes Common Stock, or rights or warrants to subscribe for or purchase Common Stock, shall be deemed instead to be (i) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such Common Stock or rights or warrants (and any reduction in the denominator of the Conversion Ratio required by this subparagraph (d) with respect to such dividend or distribution shall then be made) immediately followed by (ii) a dividend or distribution of such Common Stock or such rights or warrants (and any further reduction in the denominator of the Conversion Ratio required by subparagraph (a) or (b) of this Section 11.03 with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution as defined in this subparagraph (d) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution" and "the date fixed for such determination" within the meaning of subparagraphs (a) and (b) of this Section 11.03 and (B) any Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date for such determination" within the meaning of subparagraph (a) of this Section 11.03.
(e) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any quarterly, semi-annual, annual or other regularly scheduled Cash dividend paid on the Common Stock, and excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, unless the Company elects to reserve such cash for distribution to the Holders of the Securities upon the conversion of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the Conversion Shares to which such Holder is entitled, the amount of cash which such Holder would have received if such Holder had, immediately prior to the Record Date for such distribution of cash, converted its Securities into Conversion Shares, the denominator of the Conversion Ratio shall be reduced so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the Record Date by a fraction of which the numerator shall be the Current Market Price of the Common Stock on the Record Date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be such Current Market Price of the Common Stock, such reduction to become effective immediately prior the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall thereafter have the right to receive upon conversion the amount of cash such Holder would have received had he converted each Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such dividend or distribution had not been declared.
(f) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of the Board of Directors or such duly authorized committee thereof, as the case may be) at the last time (the "Expiration Time") tenders or exchanges may be made by holders of Common `Stock pursuant to such offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, the denominator of the Conversion Ratio shall be reduced so that such denominator shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such tender or exchange offer had not been made.
(g) The Company may make such reductions in the denominator of the Conversion Ratio, in addition to those required by subparagraphs (a), (b), (c), (d), (e) and (f) of this Section 11.03, as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the denominator of the Conversion Ratio by any amount for any period of time if the period is at least 20 days, the reduction is irrevocable during such period, and the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof) shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive. Whenever the denominator of the Conversion Ratio is reduced pursuant to the preceding sentence, the Company shall mail to Holders of record of the Securities a notice of the reduction at least 15 days prior to the date the reduced denominator of the Conversion Ratio takes effect, and such notice shall state the reduced denominator of the Conversion Ratio and the period it will be in effect.
(h) No adjustment in the denominator of the Conversion Ratio shall be required unless such adjustment would require an increase or decrease of at least 1% in the denominator of the Conversion Ratio then in effect; PROVIDED, HOWEVER, that any adjustments which by reason of this subparagraph (h) are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment shall be required. Except as provided in this Section 11.03, the denominator of the Conversion Ratio will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase any of the foregoing.
(i) Notwithstanding any other provision of this Section 11.03, in the event that the Shelf Registration Statement is not declared effective by the Commission on or prior to the date that is one year after the date of this Indenture, the denominator of the Conversion Ratio will be decreased by $.15.
Appears in 1 contract
Adjustment to Conversion Ratio. The denominator of the Conversion Ratio shall be adjusted from time to time as follows:
(a) In case the Company shall hereafter pay a dividend (excluding payment of dividends on the Company's Series A Preferred Stock) or make a distribution in Common Stock of the Company to all holders of the outstanding Common Stock of the Company, the denominator of the Conversion Ratio in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such denominator of the Conversion Ratio by a fraction of which the numerator shall be the number of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company.
(b) In case the Company shall hereafter issue rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase Common Stock at a price per share less than the Current Market Price (as defined below) on the date fixed for determination of stockholders entitled to receive such rights or warrants, the denominator of the Conversion Ratio shall be adjusted so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price, and of which the denominator shall be the number of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that Common Stock is not delivered, after the expiration of such rights or warrants the denominator shall be readjusted to the denominator which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the denominator shall again be adjusted to be the denominator which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed.
(c) In case the outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the denominator of the Conversion Ratio in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding Common Stock shall be combined into a smaller number of shares of Common Stock, the denominator of the Conversion Ratio in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend, dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock (other than a dividend or distribution to which subparagraph (a) of this Section 11.03 applies) or evidences of its indebtedness or assets (including securities, but excluding any rights or warrants referred to in subparagraph (b) of this Section 11.03, and excluding any dividend or distribution (x) in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (y) paid exclusively in cash or (z) referred to in subparagraph (a) of this Section 11.03) (any of the foregoing being hereinafter in this subparagraph (d) referred to as the "Distribution Securities"), then, in each such case, unless the Company elects to reserve such Distribution Securities for distribution to the Holders of the Securities upon the conversion of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the Conversion Shares to which such Holder is entitled, the amount and kind of such Distribution Securities which such Holder would have received if such Holder had, immediately prior to the Record Date for such distribution of the Distribution Securities, converted its Securities into Conversion Shares, the denominator of the Conversion Ratio shall be reduced so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect on the Record Date by a fraction of which the numerator shall be the Current Market Price per share of Common Stock on the Record Date less the fair market value (as determined by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of the Board of Directors or such duly authorized committee thereof, as the case may be), on the Record Date, of the portion of the Distribution Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the then fair market value (as so determined) of the portion of the Distribution Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall have the right to receive upon conversion the amount and kind of Distribution Securities such Holder would have received had such Holder converted each such Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof) determines the fair market value of any distribution for purposes of this subparagraph (d) by reference to the actual or when issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. For purposes of this subparagraph (d) and subparagraphs (a) and (b) of this Section 11.03, any dividend or distribution that includes Common Stock, or rights or warrants to subscribe for or purchase Common Stock, shall be deemed instead to be (i) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such Common Stock or rights or warrants (and any reduction in the denominator of the Conversion Ratio required by this subparagraph (d) with respect to such dividend or distribution shall then be made) immediately followed by (ii) a dividend or distribution of such Common Stock or such rights or warrants (and any further reduction in the denominator of the Conversion Ratio required by subparagraph (a) or (b) of this Section 11.03 with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution as defined in this subparagraph (d) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution" and "the date fixed for such determination" within the meaning of subparagraphs (a) and (b) of this Section 11.03 and (B) any Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date for such determination" within the meaning of subparagraph (a) of this Section 11.03.
(e) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any quarterly, semi-annual, annual or other regularly scheduled Cash cash dividend paid on the Common Stock, and excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, unless the Company elects to reserve such cash for distribution to the Holders of the Securities upon the conversion of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the Conversion Shares to which such Holder is entitled, the amount of cash which such Holder would have received if such Holder had, immediately prior to the Record Date for such distribution of cash, converted its Securities into Conversion Shares, the denominator of the Conversion Ratio shall be reduced so that the same shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the Record Date by a fraction of which the numerator shall be the Current Market Price of the Common Stock on the Record Date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be such Current Market Price of the Common Stock, such reduction to become effective immediately prior the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall thereafter have the right to receive upon conversion the amount of cash such Holder would have received had he converted each Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such dividend or distribution had not been declared.
(f) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors or, to the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of the Board of Directors or such duly authorized committee thereof, as the case may be) at the last time (the "Expiration Time") tenders or exchanges may be made by holders of Common `Stock pursuant to such offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, the denominator of the Conversion Ratio shall be reduced so that such denominator shall equal the number determined by multiplying the denominator of the Conversion Ratio in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the denominator of the Conversion Ratio shall again be adjusted to be the denominator of the Conversion Ratio which would then be in effect if such tender or exchange offer had not been made.
(g) The Company may make such reductions in the denominator of the Conversion Ratio, in addition to those required by subparagraphs (a), (b), (c), (d), (e) and (f) of this Section 11.03, as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the denominator of the Conversion Ratio by any amount for any period of time if the period is at least 20 days, the reduction is irrevocable during such period, and the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof) shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive. Whenever the denominator of the Conversion Ratio is reduced pursuant to the preceding sentence, the Company shall mail to Holders of record of the Securities a notice of the reduction at least 15 days prior to the date the reduced denominator of the Conversion Ratio takes effect, and such notice shall state the reduced denominator of the Conversion Ratio and the period it will be in effect.
(h) No adjustment in the denominator of the Conversion Ratio shall be required unless such adjustment would require an increase or decrease of at least 1% in the denominator of the Conversion Ratio then in effect; PROVIDED, HOWEVER, that any adjustments which by reason of this subparagraph (h) are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment shall be required. Except as provided in this Section 11.03, the denominator of the Conversion Ratio will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase any of the foregoing.
(i) Notwithstanding any other provision of this Section 11.03, in the event that the Shelf Registration Statement is not declared effective by the Commission on or prior to the date that is one year after the date of this Indenture, the denominator of the Conversion Ratio will be decreased by $.15.
(j
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