Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate of 52.0291 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) under the circumstances and during the periods set forth below. On and after August 15, 2016 regardless of the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016. (i) The Securities shall be convertible prior to August 15, 2016, during the five Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of the Securities for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination (the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities would be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the Conversion Agent to determine the Trading Price of the Securities, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i). (ii) The Securities shall be convertible prior to August 15, 2016, during any calendar quarter after the calendar quarter ending June 30, 2008 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120% of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfied. (iii) The Securities shall be convertible prior to August 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.01. (b) In the event that the Company elects to: (i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 calendar days after the date of the distribution, to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or (ii) distribute to all or substantially all holders of Common Stock assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan), which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution, the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities. (c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change. (d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning on the date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than the actual effective date of any such transaction. (e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction. (i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion. (ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have and the rightSecurities, at such Holder’s optionthe option of the Holder thereof, to tender for conversion all or any portion (if the portion to be converted Security that is $1,000 in principal amount or an integral multiple thereofof $1,000 may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of any Securities Common Stock of the Company at any time on or prior to 5:00 p.m.the close of business on the Final Maturity Date at the Conversion Rate, New York City timedetermined as hereinafter provided, in effect at the time of conversion and subject to the adjustments described below, only under the following circumstances:
(1) prior to December 15, 2021, on any date during any fiscal quarter (and only during such fiscal quarter) after the second Scheduled fiscal quarter ending December 31, 2003, if the Closing Price per share of the Common Stock was more than 120% of the then current Conversion Price of the Securities for at least 20 Trading Day immediately preceding November Days in the period of the 30 consecutive Trading Days ending on the last day of the previous fiscal quarter;
(2) on or after December 15, 20162021, into shares at all times on or after any date on which the Closing Price per share of the Common Stock is more than 120% of the then current Conversion Price of the Securities;
(3) until the close of business on the Business Day prior to the Redemption Date if the Company elects and is permitted to redeem the Securities on or after December 15, 2008;
(4) if the Company distributes to all or substantially all holders of Common Stock (orrights, options or warrants entitling them to purchase Common Stock at less than the election Closing Price per share of the Company, cash Common Stock on the last Trading Day preceding the declaration for such distribution;
(5) if the Company distributes to all or a combination of cash and shares substantially all holders of Common Stock cash, assets, debt securities or capital stock (other than Common Stock), which distribution has a per share value as described herein) at a rate determined by the Board of 52.0291 shares Directors exceeding 10% of the Closing Price per share of the Common Stock on the last Trading Day preceding the declaration for such distribution;
(subject to adjustment by 6) if the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount becomes a party to a consolidation, merger or binding share exchange pursuant to which all or substantially all of the Securities (Common Stock would be converted to cash, securities or other property, or if the “Conversion Rate”) under Company undergoes a Change in Control or an event occurs that would have been a Change in Control but for the circumstances and during the periods set forth below. On and after August 15, 2016 regardless existence of one of the conditions described Change in clauses (i), (iiControl exceptions pursuant to Section 3.8(a)(2) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016.Indenture; or
(i7) The Securities shall be convertible prior to August 15, 2016, during for the five ten Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the average Trading Price per $1,000 in principal amount of Prices for the Securities for each such five Trading Day of such Measurement Period period was less than 98% of the product average Conversion Value for the Securities during such period; provided, however, that a Holder may not convert its Securities pursuant to this clause (7) if, on the Conversion Date, the Closing Price per share of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination (the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities would be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable then current Conversion Rate Price of the Securities and (b) less than or equal to 120% of the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the then current Conversion Agent to determine the Trading Price of the Securities, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities shall be convertible prior to August 15, 2016, during any calendar quarter after the calendar quarter ending June 30, 2008 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120% of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfied.
(iii) The Securities shall be convertible prior to August 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 calendar days after the date of the distribution, to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan), which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution, the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning on the date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than the actual effective date of any such transaction.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Sources: Indenture (Emulex Corp /De/)
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have and the rightSecurities, at such Holder’s optionthe option of the Holder thereof, to tender for conversion all any Security or any portion (if the portion to be converted thereof that is $1,000 in principal amount or an integral multiple thereofof $1,000 may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of any Securities Common Stock of the Company at any time on or prior to 5:00 p.m., New York City time, the close of business on the second Scheduled Trading Day immediately preceding November 15Final Maturity Date, 2016, into shares of Common Stock (orunless previously redeemed by the Company or purchased by the Company at the Holders' option, at the election Conversion Rate, determined as hereinafter provided, in effect at the time of the Company, cash or a combination of cash conversion and shares of Common Stock as described herein) at a rate of 52.0291 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) adjustments described below, only under the circumstances following circumstances:
(1) after the fiscal quarter ending March 31, 2004 and during the periods set forth below. On and after August 15prior to March 5, 2016 regardless of the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right2022, at such Holder’s option, to tender for conversion all or any portion (if times after the portion to be converted is $1,000 in principal amount or an integral multiple thereof) last Trading Day of any Securities at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016.
(i) The Securities shall be convertible prior to August 15, 2016, during the five Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) fiscal quarter in which the Trading Closing Price per $1,000 in principal amount of the Securities for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price share of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination (the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities would be less was more than 98110% of the product of (a) the applicable then current Conversion Rate of the Securities and (b) the Last Reported Sale Price for at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the Conversion Agent to determine the Trading Price of the Securities, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities shall be convertible prior to August 15, 2016, during any calendar quarter after the calendar quarter ending June 30, 2008 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for least 20 or more Trading Days in a the period of the 30 consecutive Trading Days ending on the last Trading Day of such fiscal quarter;
(2) on or after March 5, 2022, at all times on or after any date on which the immediately preceding calendar quarter exceeds 120Closing Price per share of the Common Stock is more than 110% of the applicable then current Conversion Price in effect of the Securities;
(3) until the close of business on the last Trading Business Day of prior to the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, Redemption Date if the Company makes elects to redeem the determination, the Conversion Agent, if this condition was satisfied.Securities pursuant to Article 3 hereof;
(iii4) The Securities shall be convertible prior to August 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that if the Company elects to:
(i) distribute distributes to all or substantially all holders of Common Stock any rights rights, options or warrants entitling them, for a period of not more than 45 calendar days after the date of the distribution, them to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Closing Price per share of the Common Stock for on the Trading Day immediately day preceding the declaration date of for such distribution; or;
(ii5) distribute if the Company distributes to all or substantially all holders of Common Stock assets (including cash) or , assets, debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan)capital stock, which distribution has a per share value (as determined by the Company’s Board of Directors) Directors exceeding 10% of the Last Reported Sale Closing Price per share of the Common Stock on the day preceding the declaration for such distribution;
(A) if the Company becomes a party to a consolidation, merger or binding share exchange pursuant to which all or substantially all of the Company's Common Stock would be converted to cash, securities or other property, (B) if a Change in Control occurs, or (C) if an event occurs that would have been a Change in Control but for the existence of one of the Change in Control exceptions set forth in the proviso to Section 3.8(c) of this Indenture; or
(7) during the five consecutive Business Day period following any five consecutive Trading Day immediately preceding period in which the date average Trading Price for the Securities for such five consecutive Trading Day period was less than 98% of declaration the average Conversion Value for the Securities for such five consecutive Trading Day period ("trading price condition"); provided that upon any conversion of such distributionSecurities pursuant to this trading price condition if, on the applicable Conversion Date, the Company Closing Price per share of Common Stock is greater than or equal to the then current Conversion Price of the Securities and less than or equal to 110% of the then current Conversion Price of the Securities then such Holder shall notify Holders receive, instead of shares of Common Stock calculated based on the Conversion Rate, shares of Common Stock with a value equal to the principal amount of the Securities (a "Principal Value Conversion"); provided, further, that the Common Stock delivered upon a Principal Value Conversion will be valued at the greater of the Conversion Price of the Securities as of the Conversion Date and the Trustee in writing with respect to any distribution referred to in either clause applicable share price (ias defined below) or clause (ii) above and as of the resulting conversion right Conversion Date.
(b) The Company will deliver shares of Common Stock, together with any cash payable for fraction shares, to such Holder no later than the 35th Scheduled third Business Day following the determination of the applicable share price. The "applicable share price" shall mean the average of the Closing Price per share of Common Stock over the five Trading Day prior period starting the third Trading Day following the Conversion Date. The "Conversion Value" for the Securities is equal to the Ex Date for such distributionproduct of (i) the Closing Price per share of the Common Stock on a given day and (ii) the then current Conversion Rate. Once the Company has given such notice, Holders may surrender The "Trading Price" of the Securities on any date of determination means the average of the secondary market bid quotations per Security obtained by the Conversion Agent for conversion $2,500,000 principal amount of the Securities at any time until the earlier of (A) 5:00 approximately 3:30 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the determination date from two independent nationally recognized securities dealers the Company announces selects, which may include either or both of the Initial Purchasers, provided that if at least two such distribution bids cannot be reasonably obtained by the Conversion Agent, but one such bid can be reasonably obtained by the Conversion Agent, this one bid will be used. If the Conversion Agent cannot take place even if reasonably obtain at least one bid for $2,500,000 principal amount of the Securities from a nationally recognized securities dealer or if in the Company's reasonable judgment, the bid quotations are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result indicative of holding the secondary market value of the Securities, and at then the same time as holders Trading Price of the Securities will be deemed to be less than 98% of the then current Conversion Rate multiplied by the Closing Price per share of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning on the date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than the actual effective date of any such transactiondetermination date.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Sources: Indenture (Bell Microproducts Inc)
Conversion Privilege and Conversion Rate. (ai) Subject to the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12Section 5, each Holder of a Holder Note shall have the right, at such Holder’s option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities such Note (i) subject to satisfaction of one or more of the conditions described in Section 5(a)(i)(1), (2), (3), or (4), at any time prior to 5:00 p.m., New York City time, the close of business on the second Scheduled Trading Business Day immediately preceding November 15July 6, 2016, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate of 52.0291 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) 2020 under the circumstances and during the periods set forth below. On and after August 15, 2016 regardless of the conditions described in clauses (iSection 5(a)(i)(1), (2), (3), or (4), and (ii) and (iii) belowon or after July 6, and upon compliance with 2020 until the provisions close of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, business on the second Scheduled Trading Day immediately preceding November 15the Maturity Date, 2016in each case, at the Conversion Rate, subject to adjustment as provided in this Section 5, and the settlement provisions of Section 5(c), the “Conversion Obligation”.
(i1) The Securities shall be convertible If, prior to August 15, 2016, during the five close of business on the Business Day immediately preceding July 6, 2020, the Company elects to:
(A) distribute to all or substantially all Shareholders any rights, options or warrants entitling them, for a period after any five of not more than 45 calendar days from the declaration date for such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Quoted Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution; or
(B) distribute to all or substantially all Shareholders the Company’s assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as used reasonably determined in this Section 12.01(a)(igood faith by the Board of Directors, whose determination shall be evidenced by a certificate delivered to each Holder that shall be signed by two officers of the Company, including at least one of the Company’s principal executive officer, principal financial officer or principal accounting officer), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of the Securities for each Trading Day of such Measurement Period was less than 98exceeding 10% of the product of the Last Reported Sale Quoted Price of the Common Stock on such the Trading Day and immediately preceding the applicable Conversion Rate declaration date for such distribution, then, in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination (the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities would be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the Conversion Agent to determine the Trading Price of the Securities, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoingeither case, the Company shall so notify the all Holders of the Securities and Notes at least 30 Scheduled Trading Days prior to the Trustee“ex” date for such issuance or distribution, in accordance with Section 14(f). IfOnce the Company has given such notice, Holders may surrender their Notes for conversion at any time until the earlier of:
1. the close of business on the Business Day immediately preceding the “ex” date for such issuance or distribution; and
2. the Company’s declaration that such issuance or distribution will not take place.
(2) Prior to the close of business on the Business Day immediately preceding July 6, 2020, if:
(A) a transaction or event that constitutes a Fundamental Change occurs; or
(B) a transaction or event that constitutes a Make-Whole Fundamental Change occurs; or
(C) if the Company is a party to a consolidation, merger, combination, statutory or binding share exchange or similar transaction involving the Company, pursuant to which the Common Stock would be converted into, or exchanged for, cash, securities or other property or assets, or any sale, conveyance, lease or other transfer or similar transaction in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, the Notes may be surrendered by a Holder for conversion at any time from or after the date that is 30 Scheduled Trading Price Condition has been met in accordance with Days prior to the foregoinganticipated effective date of the transaction (or, if later, the Business Day after the Company gives notice of such transaction) until the close of business on the 35th Trading Price per $1,000 in principal amount Day after the actual effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the Securities is greater than or equal to 98% close of business on the product of (a) Business Day immediately preceding the applicable Conversion Rate of relevant Fundamental Change Repurchase Date. The Company shall notify Holders as promptly as practicable following the Securities and (b) date the Last Reported Sale Price on Company publicly announces such date, transaction; provided that the Company shall so notify deliver such notice in no event later than the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i)actual effective date.
(ii3) The Securities shall be convertible prior Prior to August 15the close of business on the Business Day immediately preceding July 6, 20162020, a Holder may surrender its Notes for conversion during any calendar quarter commencing after the calendar quarter ending June 30on March 31, 2008 2015 (and only during such calendar quarter), if the Last Reported Sale Price Quoted Prices of the Common Stock for at least 20 or more Trading Days in a (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120is greater than or equal to 130% of the applicable Conversion Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after March 31, 2015 whether the Notes may be surrendered for conversion in effect accordance with this Section 5(a)(i)(3) and shall notify the Holders if the Notes become convertible in accordance with this Section 5(a)(i)(3), within five Business Days of the Notes so becoming convertible, in accordance with Section 14(f).
(4) Prior to the close of business on the last Business Day immediately preceding July 6, 2020, a Holder of Notes may surrender its Notes for conversion during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this Section 5(a)(i)(4), for each Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition Measurement Period was satisfied.
(iii) The Securities shall be convertible prior to August 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 calendar days after the date of the distribution, to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan), which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 1098% of the Last Reported Sale product of the Quoted Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, subject to compliance with the procedures and conditions described in this Section 5(a)(i)(4). The Company shall provide written notice to the Solicitation Bid Agent of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Solicitation Bid Agent (if other than the Company) shall have no obligation to determine the Trading Day immediately preceding Price per $1,000 principal amount of Notes unless the date of declaration of Company has requested such distributiondetermination, and the Company shall have no obligation to make such request (or, if the Company is acting as Solicitation Bid Agent, the Company shall notify Holders have no obligation to determine the Trading Price) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Quoted Price of the Common Stock and the Trustee Conversion Rate. At such time, the Company shall instruct the Solicitation Bid Agent to (or, if the Company is acting as Solicitation Bid Agent, the Company shall) determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Quoted Price of the Common Stock and the Conversion Rate. If the Trading Price condition set forth above has been met on any Trading Day, the Company shall so notify the Holders in writing on such Trading Day, in accordance with Section 14(f). If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Quoted Price of the Common Stock and the Conversion Rate for such Trading Day, the Company shall promptly so notify the Holders of the Notes, in accordance with Section 14(f). If the Company does not, when it is required to, instruct the Solicitation Bid Agent to (or, if the Company is acting as Solicitation Bid Agent, the Company does not) obtain bids, or if the Company instructs the Solicitation Bid Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence and the Solicitation Bid Agent fails to make such determination, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Quoted Price of the Common Stock and the Conversion Rate on each Trading Day of such failure.
(ii) Provisions of this Agreement that apply to conversion of all of a Note also apply to conversion of a portion of a Note.
(iii) A Holder of Notes is not entitled to any rights of a holder of Common Stock until such Holder has converted its Notes into Common Stock.
(iv) The Conversion Rate shall be adjusted in certain instances as provided in Section 5(a)(v) and Section 5(g) hereof.
(v) If prior to the Maturity Date there shall have occurred a Make-Whole Fundamental Change, then, with respect to any distribution referred to in either clause (i) or clause (ii) above Holders of Notes who convert their Notes such that the Conversion Date therefor is during the period beginning on the Make-Whole Fundamental Change Effective Date and ending at the close of the resulting conversion right no later than the 35th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, business on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such or, in the case of a Make-Whole Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of other than a Fundamental Change, the Company shall notify in writing, in 35th Trading Day immediately following the manner provided for in this Indenture, each of the Holders and the Trustee of the Make-Whole Fundamental Change no later than the effective date Effective Date of such Make-Whole Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Conversion Rate shall be increased for such Notes by an amount of additional shares of Common Stock would (“Additional Shares”) as specified below, with the related Conversion Obligation to be converted into cashsatisfied by Stock Settlement, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning Cash Settlement or Combination Settlement in accordance with Section 5(c) based on the date on which Conversion Rate as increased to reflect the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transactionAdditional Shares. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in With respect to any event no later than the actual effective date of any such transaction.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each number of Additional Shares per $1,000 in principal amount of Securities so converted shall be increased Notes by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such so increased on any date on or after the Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Effective Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached hereto as Schedule A heretoAnnex II, as in effect at the close of business on such Make-Whole Fundamental Change Effective Date, based on the Make-Whole Reference Fundamental Change Effective Date and the price (as specified below, the “Stock Price”) paid (or deemed to be paid) per share of Common Stock in such Make-Whole Fundamental Change; provided, however, that if the Stock Price or Make-Whole Fundamental Change Effective Date are not set forth on the table: (i) if the actual Stock Price is between two Stock Price amounts in Prices on the table or the actual Make-Whole Reference Fundamental Change Effective Date is between two Make-Whole Reference Fundamental Change Effective Dates in on the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts Prices and the two nearest Make-earlier and later Make- Whole Reference Dates, as applicable, Fundamental Change Effective Dates on the table based on a 365-day year; provided, furtheras applicable, that (ii) if (1) the Stock Price is greater than on the Make-Whole Fundamental Change Effective Date exceeds $100.00 60.00 per share of Common Stock (share, subject to adjustment in accordance with clause (ii) below)as set forth herein, no adjustments Additional Shares will be made in the Conversion Ratedelivered, and (2iii) if the Stock Price is less than $12.37 11.11 per share (share, subject to adjustment in accordance with clause (ii) below)as set forth herein, no adjustments Additional Shares will be made delivered. If Holders of the Common Stock receive only cash in the Conversion RateMake-Whole Fundamental Change, the “Stock Price” shall be the cash amount paid per share of the Common Stock in connection with the Make-Whole Fundamental Change. Notwithstanding Otherwise, the foregoing“Stock Price” shall be equal to the average Quoted Prices of the Common Stock for each of the 10 Trading Days immediately preceding, in no but not including, the applicable Make-Whole Fundamental Change Effective Date ; provided, however, that if the “ex” date for any other event shall (other than the Make-Whole Fundamental Change) that requires an adjustment to the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities pursuant to Section 5(g)(i)(1), (subject to adjustment in 2), (3), (4), (5), or (6) occurs on or after the same manner as set forth in Section 12.04). In addition10th Trading Day prior to, if Holders convert their Securities and on or prior to any effective date of any Make to, the Make-Whole Fundamental Change and Effective Date, the Make Whole Fundamental Change does not occur, Holders will not Quoted Price for each Trading Day prior to the “ex” date for such other event shall be entitled to an increased adjusted by multiplying such Quoted Price by the reciprocal of the fraction by which the Conversion Rate in connection with is so required to be adjusted pursuant to Section 5(g)(i)(1), (2), (3), (4), (5), or (6) as a result of such conversion.
(ii) other event. The Stock Prices set forth in the first column row of the table attached hereto as Annex II and specified in Schedule A hereto shall clauses (ii) and (iii) of the preceding paragraph will be adjusted by the Company as of the “ex” date for any date on event in respect of which the Conversion Rate of the Securities Notes is adjusted (except pursuant to this as set forth in Section 12.01(e)5(g). The adjusted Stock Prices shall will equal the Stock Prices applicable immediately prior to such adjustment, adjustment multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment to the Conversion Rate giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within set forth in the table attached hereto as Annex II will be adjusted as of the time at which, and in the same manner as, the Conversion Rate is adjusted as set forth in Section 5(g). If the Conversion Rate is adjusted pursuant to Section 5(g) at any time after the Make-Whole Fundamental Change Effective Date for any Make-Whole Fundamental Change, then, with respect to any date on or after the time at which such adjustment is effective, the number of Additional Shares with respect to such Make-Whole Fundamental Change by which the Conversion Rate shall be increased on such date (as determined as specified above) shall be adjusted in same manner as the Conversion Rate is so adjusted. Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common Stock issuable upon conversion of a Note exceed 90.00 per $1,000 principal amount, subject to adjustment in the same manner as the Conversion Rate as set forth pursuant to Section 5(g). No later than five Business Days after the Make-Whole Fundamental Change Effective Date with respect to any Make-Whole Fundamental Change, the Company shall deliver notice to each Holder, which notice will state that a Make-Whole Fundamental Change has occurred and the Make-Whole Fundamental Change Effective Date thereof and specify the Additional Shares per $1,000 principal amount of any Note. Nothing in this Section 12.045(a)(v) shall prevent an adjustment to the Conversion Rate pursuant to Section 5(g) in respect of a Make-Whole Fundamental Change.
Appears in 1 contract
Sources: Note Purchase Agreement (Manitex International, Inc.)
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have 4 and the rightSecurities, at such Holder’s optionthe option of the Holder thereof, to tender for conversion all any Security or any portion (if the portion to be converted thereof that is $1,000 in principal amount or an integral multiple thereofof $1,000 Principal Amount at Maturity may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of any Securities at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016, into shares of Common Stock (orof the Company prior to the close of business on the Final Maturity Date or such earlier date set forth in this Article 4, unless previously redeemed to the Company or purchased by the Company at the Holders' option, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate of 52.0291 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) under the circumstances and during the periods set forth below. On and after August 15, 2016 regardless of the conditions described determined as hereinafter provided, in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities effect at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016.
(i) The Securities shall be convertible prior to August 15, 2016, during the five Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of the Securities for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent conversion and subject to compliance with the procedures and conditions adjustments described below concerning below, only under the Conversion Agent’s obligation to make such determination following circumstances:
(the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities would be less than 98% of the product of (a1) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request prior to the Conversion Agent to determine the Trading Price of the SecuritiesFinal Maturity Date, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. Ifif, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities shall be convertible prior to August 15, 2016, during any calendar quarter after the calendar quarter ending June 30, 2008 (and only during such 2004, as of the last day of the preceding calendar quarter), if the Last Reported Sale Closing Price per share of the Common Stock was more than 120% of the then current accreted conversion price for at least 20 or more Trading Days in a the period of the 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding such calendar quarter exceeds 120% (for avoidance of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar doubt, once that condition is satisfied for any quarter, the Company, or Securities will be convertible at any time at the written request option of the Company, Holder through the Conversion Agent, will determine if Final Maturity Date);
(2) until the Securities are convertible as close of business on the result of second Business Day prior to the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, Redemption Date if the Company makes elects to redeem the determination, the Conversion Agent, if this condition was satisfied.relevant Security pursuant to Article 3 hereof;
(iii3) The Securities shall be convertible prior to August 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that if the Company elects to:
(i) distribute distributes to all or substantially all holders of Common Stock any rights rights, options or warrants entitling them, them for a period expiring within 60 days of not more than 45 calendar days after the date of the distribution, such distribution to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Closing Price per share of the Common Stock for on the Trading Day immediately day preceding the declaration date of for such distribution; or;
(ii4) distribute if the Company distributes to all or substantially all holders of Common Stock assets (including cash) or , assets, debt securities of the Company or certain rights to purchase the Company’s securities capital stock (other than pursuant to a stockholders’ rights plancapital stock of the Company), which distribution has a per share value (as determined by the Company’s Board of Directors) Directors exceeding 1015% of the Last Reported Sale Closing Price per share of the Common Stock on the day preceding the declaration date for such distribution;
(5) if the Company becomes a party to a consolidation, merger or binding share exchange or a transfer of all or substantially all of its assets pursuant to which all or substantially all of the Company's Common Stock would be converted to cash, securities or other property); or
(6) during the five consecutive Business Day period following any five consecutive Trading Day immediately preceding period ending at any time on or prior to March 2, 2019 in which the date of declaration Trading Price for the Securities for each day of such distributionfive Trading Day period was less than 98% of the Conversion Value for the Securities for such Trading Day ("trading price condition"); provided that upon any conversion of Securities pursuant to this trading price condition if, on the Trading Day prior to applicable Conversion Date, the Closing Price per share of Common Stock is greater than the then current accreted conversion price of the Securities and less than or equal to 120% of the then current accreted conversion price of the Securities then such Holder shall receive, instead of shares of Common Stock calculated based on the Conversion Rate, cash or shares of Common Stock or a combination of cash and shares of Common Stock, at the option of the Company, with a value equal to the accreted principal amount of the Securities plus accrued and unpaid cash interest, if any, and accrued and unpaid Liquidated Damages, if any (a "Principal Value Conversion"); provided, further, that any Common Stock delivered upon a Principal Value Conversion will be valued at the greater of the accreted conversion price of the Securities as of the Conversion Date and the applicable stock price (as defined below) as of the Conversion Date.
(b) Following the surrender of Securities by a Holder for a conversion that is a Principal Value Conversion, the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right such Holder no later than the 35th Scheduled Trading first Business Day prior to following the Ex Conversion Date for such distribution. Once Principal Value Conversion whether the Company has given such notice, Holders may surrender shall pay the principal amount of the Securities being converted in cash and/or shares of Common Stock. The Company will deliver such cash and/or shares of Common Stock, together with any cash payable for conversion at fraction shares, to such Holder no later than the tenth Business Day following the Conversion Date. The "applicable stock price" shall mean, in respect of any time until Conversion Date, the earlier average of the Closing Price per share of Common Stock over the five Trading Day period starting the third Trading Day following the Conversion Date. The "Conversion Value" for the Securities is equal to the product of (Ai) 5:00 the Closing Price per share of the Common Stock on a given day and (ii) the then current Conversion Rate. The "Trading Price" of the Securities on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $2,500,000 Principal Amount at Maturity of the Securities at approximately 4:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the determination date from three independent nationally recognized securities dealers the Company announces selects, which may include one or more of the Initial Purchasers, provided that if three such distribution bids cannot reasonably be obtained by the Bid Solicitation Agent, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, this one bid will be used. If the Bid Solicitation Agent cannot take place even if reasonably obtain at least one bid for $2,500,000 Principal Amount at Maturity of the Securities from a nationally recognized securities dealer or if in the Company's reasonable judgment, the bid quotations are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result indicative of holding the secondary market value of the Securities, and at then the same time as holders Trading Price of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning on the date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than the actual effective date of any such transaction.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall will be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing less than 98% of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release Conversion Value on the effective date of such transactiondetermination date.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Sources: Indenture (Mgi Pharma Inc)
Conversion Privilege and Conversion Rate. (a) Subject to Solely upon the occurrence of any of the conditions described in clauses clause (i), (ii), and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder's option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the Scheduled Trading Day immediately preceding March 15, 2014, at a rate (the "CONVERSION RATE") of 52.4294 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.04 and Section 12.01(e)) per $1,000 principal amount of the Note (the "CONVERSION OBLIGATION") under the circumstances and during the periods set forth below. On and after March 15, 2014, regardless of the conditions described in clause (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s 's option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate of 52.0291 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) under the circumstances and during the periods set forth below. On and after August 15, 2016 regardless of the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities Notes at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, the close of business on the second Scheduled Trading Day immediately preceding November 15, 2016the Maturity Date.
(i) The Securities Notes shall be convertible prior to August March 15, 20162014, during the five Business Day period immediately after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”"MEASUREMENT PERIOD") in which the Trading Price per $1,000 in principal amount of the Securities Notes for each Trading Day of such Measurement Period was less than 9897% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination Day (the “Trading Price Condition”)"TRADING PRICE CONDITION") determined as set forth below. If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities Notes would be less than 9897% of the product of (a) the then-applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent Trustee to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities Note is greater than or equal to 9897% of the product of (a) the then-applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale PricePrice (as provided to the Trustee by the Company on each such date). If the Trading Price Condition has been met, the Company shall so promptly notify the Holders of the Notes. If, at any time after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of the Notes is greater than 97% of the product of (a) the then-applicable Conversion Rate of the Notes and (b) the Last Reported Sale Price on such date, the Company shall so promptly notify the Holders of the Notes, and the Trustee shall have no further obligation to determine the Trading Price of the Notes unless requested by the Company to do so again in writing pursuant to this Section 12.01(a)(i). Notwithstanding the foregoing, if the Trustee cannot reasonably obtain at least one bid for $1.0 million principal amount of the Notes from a nationally recognized securities dealer selected by the Board of Directors of the Company for the purpose of the determining the Trading Price on any Trading Day, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 97% of the product of (a) the then-applicable Conversion Rate of the Notes and (b) the Last Reported Sale Price on such date (any such determination by the Trustee shall be conclusive absent manifest error). Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to instruct the Conversion Agent Trustee to determine the Trading Price of the SecuritiesNotes, or if the Company makes such request to so instructs the Conversion Agent and Trustee, but the Conversion Agent Trustee does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities Notes shall be deemed to be less than 9897% of the product of (a) the then-applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities Notes shall be convertible prior to August March 15, 20162014, during any calendar quarter after the calendar quarter ending June September 30, 2008 2007 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 twenty (20) or more Trading Days in a period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120% of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfied.
(iii) The Securities Notes shall be convertible prior to August March 15, 20162014, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 60 calendar days after the record date of the for such distribution, to subscribe for or purchase Common Stock at a price per share less than the average of the Last Reported Sale Price Prices of the Common Stock for the ten Trading Day Days immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock Stock, assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan)'s securities, which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for conversion at any time on and after the date that the Company provides the notice to such Holders and the Trustee referred to in the next sentence until the earlier of 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex-Date for such distribution or the date the Company announces that such distribution will not take place. The Company shall notify Holders and the Trustee in writing with respect to of any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th 45th Scheduled Trading Day prior to the Ex Ex-Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the SecuritiesNotes, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the then-applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities Notes held by such Holder, without having to convert its SecuritiesNotes.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-binding share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities)assets, in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Changeproperty, then the Holders shall have the right to convert Securities Notes at any time beginning on the effective date on which of the Company gives notice or makes a public announcement of such transaction and ending on until and including the 35th date that is 45 Scheduled Trading Day following Days after the date that is the effective date of such transaction; provided such transaction does not otherwise constitute a Fundamental Change to which the provisions of subsections (d) of this Section shall apply. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than issue a Press Release on the actual Effective Date of such transaction. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the Holders.
(d) If a Fundamental Change occurs, the Company shall notify each of the Holders and the Trustee of the occurrence of any such event or transaction on the Effective Date of such event or transaction or, if later, within three Trading Days after the Company has knowledge of such event or transaction. A Holder may surrender Notes for conversion at any time from and after the Effective Date of such event or transaction until (i) the Fundamental Change Repurchase Date for such event or transaction or (ii) if there is no such Fundamental Change Repurchase Date, 45 Scheduled Trading Days following the Effective Date of such Fundamental Change.
(e) If a Holder elects to convert Securities Notes in connection with a Make-Whole Fundamental ChangeChange that occurs prior to the Maturity Date, the Conversion Rate applicable to each $1,000 in principal amount of Securities Notes so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”"ADDITIONAL SHARES") as described below. Settlement of Securities tendered for conversion to which Additional Shares ; provided, however that no increase shall be added to made in the Conversion Rate as provided case of a Fundamental Change described in this subsection clause (e2) shall be settled of the definition of Fundamental Change if at least 90% of the consideration paid for the Company's Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to Section 12.02(edissenters' appraisal rights) in such transaction consists of shares of Common Stock or American Depositary Receipts in respect of shares of Common Stock traded on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors) (or that will be so traded immediately following the transaction) and as a result of such transaction or transactions the Notes become convertible into such shares of such Common Stock or such American Depositary Receipts (or, if the Company has made the Net Share Settlement Election, into cash (in respect of the principal portion of the Notes) and such shares of such Common Stock or such American Depositary Receipts). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole "IN CONNECTION WITH" a Fundamental Change if such conversion occurs on or after the effective date Effective Date of a Fundamental Change described in clauses (1), (2), (4) or (5) of such Make-Whole Fundamental Change and prior to 5:00 p.m.definition, New York City time, on the Business Day immediately prior to in each case until the related Fundamental Change Repurchase Date for or, if there is no Fundamental Change Repurchase Date, 45 Scheduled Trading Days following the Effective Date of such Make-Whole Fundamental Change. The Company will notify Holders and , as applicable (regardless of whether the Trustee in writing provisions of the effective date clause (a)(i), (a)(ii), (b) or (c) of any Make-Whole Fundamental Change applicable this Section shall apply to this subsection (e) and issue a press release on the effective date of such transactionconversion).
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the date on which the Make-Whole Reference Date Fundamental Change occurs or becomes effective and the Stock PricePrice at the time of such Make-Whole Fundamental Change; providedprovided that for purposes of determining the number of Additional Shares, the date that a transaction described in clause (1) or (2) of the definition of Fundamental Change occurs or becomes effective shall be the earlier of (x) the date on which such transaction occurs or becomes effective and (y) the date of the first public announcement of such transaction by the Company or the counterparty to the transaction; provided further that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Effective Date is between two Make-Whole Reference Effective Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Effective Dates, as applicable, based on a 365-day year; provided, further, provided further that if (1) the Stock Price is greater than $100.00 50.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) belowthe same manner as set forth in Section 12.04), no adjustments will Additional Shares shall be made in added to the Conversion Rate, and (2) the Stock Price is less than $12.37 15.57 per share (subject to adjustment in accordance with clause (ii) belowthe same manner as set forth in Section 12.04), no adjustments will Additional Shares shall be made in added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares 64.2260 per $1,000 in principal amount of Securities Notes (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column row of the table tables in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities Notes is adjusted (except pursuant to this Section 12.01(e))adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.0412.04 (other than by operation of an adjustment to the Conversion Rate by adding Additional Shares).
Appears in 1 contract
Conversion Privilege and Conversion Rate. (a) Subject to Upon the occurrence of any of the conditions described in clauses (i), (ii) and ), (iii) belowor (iv) of this Section 10.01(a), and upon compliance with the provisions of this Article 1210, a Holder shall will have the right, at such Holder’s option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple of $1,000 in excess thereof) of any Securities its Notes at any time prior to 5:00 p.m., New York City time, the Close of Business on the second Scheduled Trading Day immediately preceding November June 15, 20162017, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate (the “Conversion Rate”) of 52.0291 97.2384 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof10.04) per $1,000 in principal amount of the Securities Notes (the “Conversion RateObligation”) under the circumstances and during the periods set forth below. On and after August June 15, 2016 2017, regardless of the such conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 1210, a Holder shall have the right, at such Holder’s option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple of $1,000 in excess thereof) of any Securities its Notes at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, the Close of Business on the second Scheduled Trading Day immediately preceding November 15, 2016the Maturity Date.
(i) The Securities shall be convertible prior Prior to August the Close of Business on the Scheduled Trading Day immediately preceding June 15, 20162017, a Holder may surrender all or a portion of its Notes in $1,000 principal amount or an integral multiple of $1,000 in excess thereof for conversion during the five Business Day period immediately after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of the Securities Notes for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on for the Notes for such Trading Day, as determined by Day (the Conversion Agent and “Trading Price Condition”) subject to compliance with the procedures and conditions described below concerning the Conversion Bid Solicitation Agent’s obligation to make such determination (the “a Trading Price Condition”)determination. If The Bid Solicitation Agent will have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination, and the Company will have no obligation to make such request (or seek bids itself) unless a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities Notes would be less than 98% of the product of (a) the applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price of the Common Stock at such time. At such time, then the Company shall shall, or instruct the Conversion Bid Solicitation Agent to to, determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities Notes is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale PricePrice of the Common Stock. If the Trading Price Condition has been met, the Company will so notify the Holders, the Bid Solicitation Agent and the Trustee in writing and issue a press release containing the relevant information and make such information available on the website of the Company. If, at any time after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of the Notes is greater than 98% of the product of (a) the applicable Conversion Rate of the Notes and (b) the Last Reported Sale Price of the Common Stock on such date, the Company will so notify the Holders, the Bid Solicitation Agent and the Trustee in writing, and the Bid Solicitation Agent will have no further obligation to determine the Trading Price of the Notes unless requested by the Company to do so again pursuant to this clause (i). Notwithstanding the foregoing, if either the Company or the Bid Solicitation Agent cannot reasonably obtain at least one bid for $1.0 million principal amount of the Notes from a nationally recognized securities dealer selected by the Board of Directors for the purpose of determining the Trading Price on any Trading Day, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Notes and (b) the Last Reported Sale Price of the Common Stock on such date (any such determination by the Bid Solicitation Agent will be conclusive absent manifest error). Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to instruct the Conversion Bid Solicitation Agent to determine the Trading Price of the SecuritiesNotes or if the Company fails to determine the Trading Price of the Notes when obligated, or if the Company makes such request to so instructs the Conversion Agent and Bid Solicitation Agent, but the Conversion Bid Solicitation Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall Notes will be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price of the Common Stock on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities shall be convertible prior Prior to August the Close of Business on the Scheduled Trading Day immediately preceding June 15, 20162017, a Holder may surrender all or a portion of its Notes in $1,000 principal amount or an integral multiple of $1,000 in excess thereof for conversion during any calendar quarter after the calendar quarter ending June 30December 31, 2008 2011 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days in a (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120is equal to or greater than 130% of the applicable Conversion Price in effect on the last each applicable Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfiedDay.
(iii) The Securities shall Notes will be convertible prior to August 15, 2016convertible, as provided in subsections (b), (cSections 10.01(a)(iii)(A) and (d) of this Section 12.01B).
(bA) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 calendar days after the date of the distribution, to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan), which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution, the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning on the date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than the actual effective date of any such transaction.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Sources: Indenture (Castle a M & Co)
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses clause (i), (ii) ), and (iii) below, and upon compliance with the provisions of this Article 1213, a Holder shall have the right, at such Holder’s option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities Notes at any time prior to 5:00 p.m., New York City time, the close of business on the second Scheduled Trading Day immediately preceding November June 15, 20162012, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate (the “Conversion Rate”) of 52.0291 29.4172 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof13.04) per $1,000 in principal amount of the Securities (the “Conversion Rate”) Notes under the circumstances and during the periods set forth below. On and after August June 15, 2016 2012 regardless of the conditions described in clauses clause (i), (ii) and (iiiii) below, and upon compliance with the provisions of this Article 1213, a Holder shall have the right, at such Holder’s option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities Notes at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, the close of business on the second third Scheduled Trading Day immediately preceding November 15, 2016the Maturity Date.
(i) The Securities Notes shall be convertible prior to August the close of business on the Scheduled Trading Day immediately preceding June 15, 20162012, during the five Business Day period immediately after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of the Securities Notes for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination Day (the “Trading Price Condition”)) determined as set forth below. If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities Notes would be less than 98% of the product of (a) the then-applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent Trustee to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities Note is greater than or equal to 98% of the product of (a) the then-applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the Conversion Agent to determine the Trading Price of the Securities, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price (as provided to the Trustee by the Company on each such date). If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the TrusteeNotes. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities Notes is greater than or equal to 98% of the product of (a) the then-applicable Conversion Rate of the Securities Notes and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the TrusteeNotes, and the Company Trustee shall have no further obligation to determine the Trading Price of the Securities Notes unless requested by the Company to do so again in writing pursuant to this Section 12.01(a)(i13.01(a)(i). Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), instruct the Trustee to determine the Trading Price of the Notes, or if the Company so instructs the Trustee, but the Trustee does not make such determination, then the Trading Price per $1,000 principal amount of the Notes shall be deemed to be less than 98% of the product of (a) the then-applicable Conversion Rate of the Notes and (b) the Last Reported Sale Price on such date.
(ii) The Securities Notes shall be convertible prior to August the close of business on the Scheduled Trading Day immediately preceding June 15, 20162012, during any calendar quarter after the calendar quarter ending June 30, 2008 2007 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 twenty (20) or more Trading Days in a period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120% of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfied.
(iii) The Securities Notes shall be convertible prior to August June 15, 20162012, as provided in subsections (b), (c) and (d) of this Section 12.0113.01.
(b) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 60 calendar days after the record date of the for such distribution, to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock Stock, assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan)securities, which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution, the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to then, in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such noticecase, Holders may surrender the Securities Notes for conversion at any time on and after the date that the Company provides the notice to such Holders referred to in the next sentence until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Ex-Date for such distribution or (B) the date the Company announces that such distribution will not take place even if place. The Company shall notify Holders at least 35 Scheduled Trading Days prior to the Securities are not otherwise convertible at Ex-Date for such timedistribution. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the SecuritiesNotes, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the then-applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities Notes held by such Holder, without having to convert its SecuritiesNotes.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities)properties, in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental ChangeDesignated Event, then the Holders shall have the right to convert Securities Notes at any time beginning on 35 Scheduled Trading Days prior to the date on which announced by the Company gives notice or makes a public announcement as the anticipated effective date of such the transaction and ending on the 35th Scheduled Trading Day following after the date that is the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than 35 Scheduled Trading Days prior to the actual anticipated effective date of any such transaction. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the Holders.
(d) If the Company is a party to any transaction or event described in clause (a) or (e) of the definition of Fundamental Change, a Holder may surrender Notes for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 13.01(d), from and after the 35th Scheduled Trading Day prior to the anticipated effective date of such transaction or event until (i) the related Designated Event Repurchase Date or (ii) if there is no such Designated Event Repurchase Date, 35 Trading Days following the effective date of such transaction or event. If an event described in clause (b), (c) or (d) of the definition of Fundamental Change or a Termination of Trading occurs, a Holder may surrender Notes for conversion at any time, after the Company gives the notice referred to in the last sentence in this Section 13.01(d) and issue a press release on the effective date of such event, from and after the effective date of such event or the date on which the Termination of Trading occurs, as the case may be, until (i) the Designated Event Repurchase Date corresponding to such event or (ii) if there is no such Designated Event Repurchase Date, 35 Trading Days following the effective date of such event. The Company shall notify, in the manner provided for in Section 1.07, each of the Holders of the Designated Event and issue a press release, (i) no later than 35 Scheduled Trading Days prior to the anticipated Effective Date with respect to a transaction or event described in the first sentence above or (ii) with respect to an event described in the second sentence of this Section 13.01(d), on the Effective Date or the date on which the Termination of Trading occurs, as the case may be.
(e) If a Holder elects to convert Securities Notes at any time on or after the 35th Scheduled Trading Day prior to the date announced by the Company as the anticipated effective date of a Fundamental Change described in connection with clauses (a) or (e) of the definition thereof or on or after the effective date of a Make-Whole Fundamental ChangeChange described in clause (c) of the definition thereof, in each case until the related Designated Event Repurchase Date for such Fundamental Change or, if there is no such Designated Event Repurchase Date, until the 35th Trading Day following such effective date, as applicable, the Conversion Rate applicable to each $1,000 in principal amount of Securities Notes so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below; provided, however, that no increase shall be made in the case of an event described in clause (a), (c) or (e) of the definition of Fundamental Change if 100% of the consideration paid for the Company’s Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change consists of shares of Capital Stock or American Depositary Receipts in respect of shares of Capital Stock traded (or that will be so traded or quoted immediately following the transaction) on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors) and as a result of such transaction or transactions the Notes become convertible into such shares of such Capital Stock or such American Depositary Receipts, subject to the payment of the Principal Portion thereof in cash. Settlement of Securities Notes tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e13.02(d). For purposes The Company shall notify, in the manner provided for in Section 1.07, each of the Holders of the occurrence of an event described in this subsection paragraph and issue a press release (i) no later than 35 Scheduled Trading Days prior to the anticipated Effective Date with respect to a transaction with respect to any transaction described in clause (a) or (e), a conversion shall be deemed to be ) of the definition of the term “in connection withFundamental Change” such Make-Whole Fundamental Change if such conversion occurs on or after and (ii) promptly upon receiving knowledge of the effective date of such Make-Whole Fundamental Change and prior transaction with respect to 5:00 p.m., New York City time, on any transaction described in clause (c) of the Business Day immediately prior to definition of the related Fundamental Change Repurchase Date for such Make-Whole term “Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.”
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A II hereto, based on the Make-Whole Reference Date date on which the Fundamental Change occurs or becomes effective (the “Effective Date”), and the Stock Price; provided, provided that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Effective Date is between two Make-Whole Reference Effective Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Effective Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 60.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will Additional Shares shall be made in added to the Conversion Rate, and (2) the Stock Price is less than $12.37 27.75 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will Additional Shares shall be made in added to the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares 36.0360 per $1,000 in principal amount of Securities Notes (subject to adjustment in the same manner as set forth in Section 12.0413.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column row of the table tables in Schedule A II hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities Notes is adjusted (except pursuant to this Section 12.01(e13.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.0413.04 (other than by operation of an adjustment to the Conversion Rate by adding Additional Shares).
Appears in 1 contract
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses (i), (ii), (iii) and (iiiiv) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender surrender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount Original Principal Amount or an integral multiple thereof) of any Securities at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15March 1, 20162013, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate of 52.0291 19.9695 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 12.05 hereof) per $1,000 in principal amount Original Principal Amount of the Securities (the “Conversion Rate”) under the circumstances and during the periods set forth below. On and after August 15March 1, 2016 2013, regardless of the conditions described in clauses (i), (ii), (iii) and (iiiiv) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender surrender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount Original Principal Amount or an integral multiple thereof) of any Securities at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016the Maturity Date.
(i) The Securities shall be convertible prior to August 15March 1, 20162013, during the five Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount Original Principal Amount of the Securities for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent Company and subject to compliance with the procedures and conditions described below concerning the Conversion AgentCompany’s obligation to make such determination (the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount Original Principal Amount of the Securities would be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price of the Common Stock at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount Original Principal Amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale PricePrice of the Common Stock. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the Conversion Agent to determine the Trading Price of the Securities, or if the Company makes such request to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount Original Principal Amount of the Securities shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price of the Common Stock on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount Original Principal Amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price of the Common Stock on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities shall be convertible prior to August 15March 1, 20162013, during any calendar quarter after the calendar quarter ending June 30, 2008 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120% of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, Company will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfied.
(iii) In the event the Company calls the Securities for redemption pursuant to Section 11.01, the Securities shall be convertible until 5:00 p.m., New York City time, on the Business Day preceding the applicable Redemption Date (after which time the Holders’ right to convert will expire unless the Company defaults in the payment of the applicable Redemption Price).
(iv) The Securities shall be convertible prior to August 15March 1, 20162013, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 60 calendar days after the date of the such distribution, to subscribe for or purchase shares of Common Stock at a price per share less than the average of the Last Reported Sale Price Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan), which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the average of the Last Reported Sale Price Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date of declaration of such distribution, ; the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th 25th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place place, even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and ) at the same time as holders of the Common Stock participate) participate in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) Original Principal Amount of Securities held by such HolderHolder divided by $1,000, without having to convert its Securities.
(c) If an event constituting a Fundamental Change occurs, the Company is a party to shall notify the Holders and the Trustee in writing of the occurrence of any transaction such event on or before the date such event described in occurs or becomes effective or, if later, within one Business Day after the definition date the Company becomes aware of Fundamental Changesuch occurrence or effectiveness. Once the Company has given such notice, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), time from the effective date of such event until the later of (i) the Fundamental Change Repurchase Date corresponding to such events event or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-binding share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities)assets, in each case pursuant to which the Common Stock would be converted into or exchanged for cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert surrender Securities for conversion at any time beginning on 25 Scheduled Trading Days prior to the anticipated effective date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall use its reasonable best efforts to notify Holders and the Trustee in writing as soon as practicableby the later of (i) the date that the Company publicly discloses any such transaction and (ii) 25 Scheduled Trading Days prior to the anticipated effective date of such transaction, and in any event no later than the actual effective date of any such transaction. The Board of Directors shall determine the anticipated effective date of any such transaction, and such determination shall be conclusive and binding on the Holders.
(e) If a Holder elects to convert surrender Securities for conversion in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount Original Principal Amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, furtherhowever, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will increase shall be made in the Conversion Rate, and case a transaction constituting a Fundamental Change pursuant to clauses (1) or (2) of the definition thereof if 90% or more of the consideration for the Common Stock Price is less than $12.37 per share (subject excluding cash payments for fractional shares and cash payments made pursuant to adjustment in accordance with clause (iidissenters’ appraisal rights and cash dividends) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column transaction consists of shares of common equity traded on any of the table in Schedule A hereto shall New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors) (or will be adjusted by the Company so traded or quoted immediately following such transaction) and, as a result of any date on which the Conversion Rate of such transaction or transactions, the Securities is adjusted become convertible (except to the extent otherwise convertible into shares of Common Stock) into such shares of such common equity pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.0412.10.
Appears in 1 contract
Sources: Indenture (Hercules Offshore, Inc.)
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses subsections (i), (ii), and (iii) below, and upon compliance with the provisions of this Article 5, a Holder shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the Scheduled Trading Day immediately preceding December 15, 2016, at the Conversion Rate (subject to adjustment as provided in this Supplemental Indenture) per $1,000 principal amount of the Note (the “Conversion Obligation”) under the circumstances and during the periods set forth below. On and after December 15, 2016, regardless of the conditions described in subsections (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 125, a Holder shall have the right, at such Holder’s option, to tender for conversion convert all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016, into shares of Common Stock (or, at the election of the Company, cash or a combination of cash and shares of Common Stock as described herein) at a rate of 52.0291 shares of Common Stock (subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) under the circumstances and during the periods set forth below. On and after August 15, 2016 regardless of the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the right, at such Holder’s option, to tender for conversion all or any portion (if the portion to be converted is $1,000 in principal amount or an integral multiple thereof) of any Securities Notes at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, the close of business on the second third Scheduled Trading Day immediately preceding November 15, 2016the Stated Maturity Date.
(i) The Securities Notes shall be convertible prior to August the close of business on the Scheduled Trading Day immediately preceding December 15, 2016, during the five Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the Trading Price per $1,000 in principal amount of the Securities Notes, determined as set forth below, for each Trading Day of such the Measurement Period was less than 98% of the product of (x) the Last Reported Sale Price of the Common Stock on such Trading Day and (y) the applicable Conversion Rate in effect on for the Notes for such Trading Day, as determined by the Conversion Bid Solicitation Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Bid Solicitation Agent’s obligation to make such determination (the “Trading Price Condition”). If The Bid Solicitation Agent shall have no obligation to determine the Trading Price of the Notes and the Company shall have no obligation to make such request unless a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities Notes would be less than 98% of the product of (a) the applicable Conversion Rate Last Reported Sale Price of the Securities Common Stock and (b) the Last Reported Sale Price applicable Conversion Rate, in which case and at such time, then time the Company shall instruct the Conversion Bid Solicitation Agent to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities Notes is greater than or equal to 98% of the product of (a) the applicable Conversion Rate Last Reported Sale Price of the Securities Common Stock and (b) the Last Reported Sale Priceapplicable Conversion Rate. Furthermore, if If the Company does not, when obligated to do so pursuant to this clause (i), make a written request to instruct the Conversion Bid Solicitation Agent to determine the Trading Price of the SecuritiesNotes, or if the Company makes such request to so instructs the Conversion Agent and Bid Solicitation Agent, but the Conversion Bid Solicitation Agent does not make such determination, then the Trading Price per $1,000 in principal amount of the Securities Condition shall be deemed to be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on have been satisfied until such datefailure has been cured. If the Trading Price Condition has been met in accordance with the foregoingmet, the Company shall so promptly notify the Holders of the Securities and the TrusteeNotes. If, at any time after the Trading Price Condition has been met in accordance with the foregoingmet, the Trading Price per $1,000 in principal amount of the Securities Notes is greater than or equal to 98% of the product of (a) the applicable Conversion Rate Last Reported Sale Price of the Securities Common Stock and (b) the Last Reported Sale Price on applicable Conversion Rate for such date, the Company shall so promptly notify the Holders of the Securities and the TrusteeNotes, and the Company Bid Solicitation Agent shall have no further obligation to determine the Trading Price of the Securities Notes unless requested by the Company to do so again in writing pursuant to this Section 12.01(a)(i5.01(a)(i).
(ii) The Securities Notes shall be convertible prior to August the close of business on the Scheduled Trading Day immediately preceding December 15, 2016, 2016 during any calendar quarter after the calendar quarter ending June 30March 31, 2008 2012 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for 20 twenty (20) or more Trading Days in a period of 30 thirty (30) consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter exceeds 120130% of the applicable Conversion Price in effect on each such Trading Day, all as determined by the last Trading Day of Company and communicated to the immediately preceding calendar quarterTrustee (the “Stock Price Condition”). For each calendar quarterIf the Stock Price Condition has been satisfied, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will shall promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfiedof Notes.
(iii) The Securities Notes shall be convertible prior to August the close of business on the Scheduled Trading Day immediately preceding December 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.015.01.
(b) In the event that If the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, them for a period of not more than 45 60 calendar days after the record date of the distribution, for such distribution to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for on the Trading Day immediately preceding the declaration date of such the distribution; or
(ii) distribute to all or substantially all holders of Common Stock the Company’s assets (including cash) or ), debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan)securities, which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 105% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date of declaration of for such distribution, then, in either case, the Company shall notify Holders and the Trustee in writing with respect to any of such distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th at least 65 Scheduled Trading Day Days prior to the Ex Ex-Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities Notes for conversion at any time until the earlier of (Ax) 5:00 p.m., New York City time, the close of business on the Business Day immediately preceding prior to the Ex Ex-Date for such distribution or and (By) the date the Company announces that such distribution will not take place place, even if the Securities Notes are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the SecuritiesNotes, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above of this Section 5.01(b) as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities Notes held by such Holder, without having to convert its SecuritiesNotes.
(c) If the Company is a party to any transaction or event described in the definition of constituting a Fundamental ChangeChange occurs, a Holder may surrender Securities Notes for conversion at any time, time after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such transaction or event until (i) the Fundamental Change Repurchase Date corresponding to such events transaction or event or (ii) if there is no such Fundamental Change Repurchase Date, 35 30 Scheduled Trading Days following the effective date of such transaction or eventevent and, upon such surrender the Holder may be entitled to an increase in the Conversion Rate by Additional Shares of Common Stock, if any, as specified in Section 5.02. After the occurrence of If a transaction or event constituting a Fundamental ChangeChange occurs, the Company shall notify in writingnotify, in the manner provided for in this Section 106 of the Original Indenture, each of the Holders and the Trustee of the Fundamental Change no later than occurrence of any such transaction or event on the effective date of such Fundamental Changetransaction or event.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-binding share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties property and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but includingbut, to for the extent appropriateavoidance of doubt, not excluding any foreclosure on such pledged securitiesthereon), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities Notes at any time beginning on the earlier of (i) the date on which the Company gives notice or makes a public announcement of such transaction and (ii) the effective date of such transaction, and ending on the 35th 20th Scheduled Trading Day following the effective date of such transaction. The Company shall notify each of the Holders and the Trustee in writing as soon as practicable, and in any event no later than practicable of the actual anticipated effective date of any such transaction.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion transaction to which Additional Shares shall be added to the Conversion Rate as provided in provisions of this subsection (eSection 5.01(d) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transactionapply.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Conversion Privilege and Conversion Rate. (a) Subject to the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the provisions of this Article 12, a Holder shall have the rightArticle, at such Holder’s optionthe option of the Holder thereof, to tender for conversion all or any portion (if the portion to be converted Security that is $1,000 in principal amount or an integral multiple thereofof $1,000 may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common Stock of the Company at the Conversion Rate, determined as hereinafter provided, in effect at the time of conversion and subject to the adjustments described below, as follows:
(1) if, on or prior to March 31, 2008, the Closing Sale Price of the Common Stock for at least 20 Trading Days in the period of the 30 consecutive Trading Days ending on the last Trading Day of any fiscal quarter is more than 110% of the then current Conversion Price on the Securities, then the Holder thereof will be entitled to convert such Security during the immediately following fiscal quarter;
(2) if, on any date after March 31, 2008, the Closing Sale Price of the Common Stock is more than 110% of the then current Conversion Price on the Securities, then the Holder thereof will be entitled to convert such Security at all times thereafter;
(3) if the Company elects to call the Securities for redemption on or after October 5, 2008, then the Holder thereof will be entitled to convert such Security (or the portion of the Security called for redemption, if less than all), until the close of business on the Business Day prior to the Redemption Date;
(4) if the Company distributes to all or substantially all holders of Common Stock rights, options or warrants entitling them to purchase Common Stock at less than the Closing Sale Price of the Common Stock on the last day preceding the declaration for such distribution, then the Holder thereof will be entitled to convert such Security in the period described below;
(5) if the Company distributes to all or substantially all holders of Common Stock cash, assets, debt securities or capital stock, which distribution has a per share value as determined by the Board of Directors exceeding 5% of the Closing Sale Price of the Common Stock on the last day preceding the declaration for such distribution, then the Holder thereof will be entitled to convert such Security in the period described below; or
(6) if the Company becomes a party to a consolidation, merger or sale of all or substantially all of the Company’s assets where such consolidation, merger or sale of all or substantially all of the Company’s assets constitutes a Change in Control or such an event occurs that would have been a Change in Control but for the exceptions (I) and (II) to the definition of a Change in Control immediately following Section 13.4(2)(iii), then the Holder thereof will be entitled to convert such Security in the period described below. In the case of a distribution contemplated in clauses (4) and (5) of this Section 12.1(a), the Company will notify Holders at least 20 days prior to the ex-dividend date for such distribution (the “Distribution Notice”). Once the Company has given the Distribution Notice, Holders may surrender their Securities for conversion at any time until the earlier of the close of business on the last Business Day preceding the ex-dividend date or the Company’s announcement that such distribution will not take place. If in the future the Company adopts a Rights Plan, Holders will not have any conversion right pursuant to clause (4) above or otherwise, solely as a result of the issuance of Rights pursuant to the Rights Plan. Notwithstanding the foregoing, in the event of a distribution contemplated in clauses (4) and (5) of this Section 12.1(a), Holders may not convert the Securities if the Holders may participate in such distribution without converting their Securities. In the event of a consolidation, merger or sale of all or substantially all of the Company’s assets as contemplated in clause (6) of this Section 12.1(a), the Company will notify Holders at least 20 days prior to 5:00 p.m.the anticipated closing date of such transaction (the “Merger Notice”). Once the Company has given the Merger Notice, New York City timethe Holders may, in the event of such consolidation, merger or sale of all or substantially all of the Company’s assets, as contemplated in clause (6) above, surrender Securities for conversion at any time from and after the date which is 15 days prior to the anticipated effective date of such transaction until the date which is 15 days after the actual effective date of such transaction. With respect to clause (1) of this Section 12.1(a), the Conversion Agent will determine, on the second Scheduled Trading Day immediately preceding November 15, 2016, into shares of Common Stock (or, at the election behalf of the Company, cash or a combination on the last Trading Day succeeding the first day of cash and shares the fiscal quarter in which the Securities would be convertible, whether the Securities are convertible as set forth in such clause (1) based upon the Closing Sale Price of the Common Stock and the then current Conversion Price and, if so, will notify the Company. With respect to clause (2) of this section 12.1(a), the Conversion Agent will determine, on behalf of the Company, daily on any date after March 31, 2008, whether the Securities are convertible as described hereinset forth in such clause (2) at a rate based upon the Closing Sale Price of 52.0291 shares of the Common Stock and the then current Conversion Price and, if so, will notify the Company.
(subject b) Subject to adjustment by the Company as provided in Section 12.01(e) and Section 12.04 hereof) per $1,000 in principal amount of the Securities (the “Conversion Rate”) under the circumstances and during the periods set forth below. On and after August 15, 2016 regardless of the conditions described in clauses (i), (ii) and (iii) below, and upon compliance with the further provisions of this Article 12, a Holder shall have of a Security may also convert the right, at principal amount of such Holder’s option, to tender for conversion all Security (or any portion (if the portion thereof equal to be converted is $1,000 or any integral multiple of $1,000 in principal amount or an integral multiple excess thereof) of any Securities at the applicable Conversion Rate at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding November 15, 2016.
(i) The Securities shall be convertible prior to August 15, 2016, during for the five Business Day period after any five consecutive Trading Day period (as used in this Section 12.01(a)(i), the “Measurement Period”) in which the average of the Trading Price per $1,000 in principal amount of Prices for the Securities for each such five Trading Day of such Measurement Period period was less than 9895% of the product of average Conversion Value for the Last Reported Securities during such period; provided, however, if on the Conversion Date, the Closing Sale Price of the shares of Common Stock on such Trading Day and is greater than the applicable then current Conversion Rate in effect on such Trading Day, as determined by the Conversion Agent and subject to compliance with the procedures and conditions described below concerning the Conversion Agent’s obligation to make such determination (the “Trading Price Condition”). If a Holder provides the Company with written notice which includes reasonable evidence that the Trading Price per $1,000 in principal amount of the Securities would be less than 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price at such time, then the Company shall instruct the Conversion Agent to determine the Trading Price beginning on the next Trading Day and on each successive Trading Day until the date on which the Trading Price per $1,000 in principal amount of the Securities is greater less than or equal to 98110% of the product of (a) the applicable then current Conversion Rate of the Securities and (b) the Last Reported Sale Price. Furthermore, if the Company does not, when obligated to do so pursuant to this clause (i), make a written request to the Conversion Agent to determine the Trading Price of the Securities, a Holder surrenders its Securities for conversion and the Securities are not otherwise convertible, then such Holder will receive, (i) at the Company’s option for a Conversion Date on or if the Company makes such request before October 4, 2008, cash or Common Stock with a value equal to the Conversion Agent and the Conversion Agent does not make such determination, then the Trading Price per $1,000 in principal amount of such Holder’s Securities on such Conversion Date or (ii) for a Conversion Date on or after October 5, 2008, cash equal to the principal amount of such Holder’s Securities shall on such Conversion Date and for such conversion the Company will not have the option to pay in Common Stock. If the Company elects to pay the Holder in Common Stock, the Common Stock will be deemed to be less than 98valued at 100% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date. If the Trading Price Condition has been met in accordance with the foregoing, the Company shall so notify the Holders of the Securities and the Trustee. If, at any time after the Trading Price Condition has been met in accordance with the foregoing, the Trading Price per $1,000 in principal amount of the Securities is greater than or equal to 98% of the product of (a) the applicable Conversion Rate of the Securities and (b) the Last Reported Sale Price on such date, the Company shall so notify the Holders of the Securities and the Trustee, and the Company shall have no further obligation to determine the Trading Price of the Securities unless requested to do so again in writing pursuant to this Section 12.01(a)(i).
(ii) The Securities shall be convertible prior to August 15, 2016, during any calendar quarter after the calendar quarter ending June 30, 2008 (and only during such calendar quarter), if the Last Reported average Closing Sale Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive the five Trading Days ending on the last third Trading Day of the immediately preceding calendar quarter exceeds 120% of the applicable Conversion Price in effect on the last Trading Day of the immediately preceding calendar quarter. For each calendar quarter, the Company, or at the written request of the Company, the Conversion Agent, will determine if the Securities are convertible as the result of the satisfaction of the condition in this Section 12.01(a)(ii) in the preceding calendar quarter and the Company will promptly notify the Holders and the Trustee and, if the Company makes the determination, the Conversion Agent, if this condition was satisfiedDate.
(iii) The Securities shall be convertible prior to August 15, 2016, as provided in subsections (b), (c) and (d) of this Section 12.01.
(b) In the event that the Company elects to:
(i) distribute to all or substantially all holders of Common Stock any rights or warrants entitling them, for a period of not more than 45 calendar days after the date of the distribution, to subscribe for or purchase Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock assets (including cash) or debt securities of the Company or certain rights to purchase the Company’s securities (other than pursuant to a stockholders’ rights plan), which distribution has a per share value (as determined by the Company’s Board of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of declaration of such distribution, the Company shall notify Holders and the Trustee in writing with respect to any distribution referred to in either clause (i) or clause (ii) above and of the resulting conversion right no later than the 35th Scheduled Trading Day prior to the Ex Date for such distribution. Once the Company has given such notice, Holders may surrender the Securities for conversion at any time until the earlier of (A) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex Date for such distribution or (B) the date the Company announces that such distribution will not take place even if the Securities are not otherwise convertible at such time. A Holder may not exercise this right if such Holder is permitted to participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any distribution referred to in clause (i) or clause (ii) above as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities.
(c) If the Company is a party to any transaction or event described in the definition of Fundamental Change, a Holder may surrender Securities for conversion at any time, after the Company gives the notice referred to in the last sentence of this Section 12.01(c), from the effective date of such event until (i) the Fundamental Change Repurchase Date corresponding to such events or (ii) if there is no such Fundamental Change Repurchase Date, 35 Scheduled Trading Days following the effective date of such transaction or event. After the occurrence of a Fundamental Change, the Company shall notify in writing, in the manner provided for in this Indenture, each of the Holders and the Trustee of the Fundamental Change no later than the effective date of such Fundamental Change.
(d) If the Company is a party to a combination, merger, recapitalization, reclassification, binding-share exchange or other similar transaction or sale or conveyance of all or substantially all of its properties and assets (excluding a pledge of securities issued by any of the Company’s Subsidiaries but including, to the extent appropriate, any foreclosure on such pledged securities), in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property and that does not also constitute a Fundamental Change, then the Holders shall have the right to convert Securities at any time beginning on the date on which the Company gives notice or makes a public announcement of such transaction and ending on the 35th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders and the Trustee in writing as soon as practicable, and in any event no later than the actual effective date of any such transaction.
(e) If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change, the Conversion Rate applicable to each $1,000 in principal amount of Securities so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. Settlement of Securities tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection (e) shall be settled pursuant to Section 12.02(e). For purposes of this subsection (e), a conversion shall be deemed to be “in connection with” such Make-Whole Fundamental Change if such conversion occurs on or after the effective date of such Make-Whole Fundamental Change and prior to 5:00 p.m., New York City time, on the Business Day immediately prior to the related Fundamental Change Repurchase Date for such Make-Whole Fundamental Change. The Company will notify Holders and the Trustee in writing of the effective date of any Make-Whole Fundamental Change applicable to this subsection (e) and issue a press release on the effective date of such transaction.
(i) The number of Additional Shares by which the applicable Conversion Rate will be increased in the event of a Make-Whole Fundamental Change shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the Make-Whole Reference Date and the Stock Price; provided, that if the actual Stock Price is between two Stock Price amounts in the table or the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Reference Dates, as applicable, based on a 365-day year; provided, further, that if (1) the Stock Price is greater than $100.00 per share of Common Stock (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2) the Stock Price is less than $12.37 per share (subject to adjustment in accordance with clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 80.8407 shares per $1,000 in principal amount of Securities (subject to adjustment in the same manner as set forth in Section 12.04). In addition, if Holders convert their Securities prior to any effective date of any Make Whole Fundamental Change and the Make Whole Fundamental Change does not occur, Holders will not be entitled to an increased Conversion Rate in connection with such conversion.
(ii) The Stock Prices set forth in the first column of the table in Schedule A hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 12.04.
Appears in 1 contract
Sources: Indenture (Hewitt Associates Inc)