Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as follows: (i) If the Corporation issues shares of Voting Common Stock as a dividend or distribution on shares of Voting Common Stock, or if a share split or share combination is effected, the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O = the Conversion Rate in effect immediately prior to such event CR 1 = the Conversion Rate in effect immediately after such event OS O = the number of shares of Voting Common Stock outstanding immediately prior to such event OS 1 = the number of shares of Voting Common Stock outstanding immediately after such event An adjustment made pursuant to this Section 9(a)(i) shall become effective on the date immediately after (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this Section 9(a)(i) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (ii) If the Corporation issues to all or substantially all holders of Voting Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 20 days after the date of issuance thereof to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares of the Voting Common Stock on the business day immediately preceding the time of announcement of such issuance, the Conversion Rate will be adjusted based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O = the Conversion Rate in effect immediately prior to such event CR l = the Conversion Rate in effect immediately after such event OS O = the number of shares of Voting Common Stock outstanding immediately prior to such event X = the total number of shares of Voting Common Stock issuable pursuant to such rights. warrants, options, other securities or convertible securities Y = the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by the Board of Directors. (iii) If the Corporation distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: (1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2) dividends or distributions paid exclusively in cash; and (3) Spin-Offs described in this Section 9(a)(iii) below, then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for such distribution FMV = the Fair Market Value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock on the record date for such distribution An adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective on the day immediately after the dated fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 9(a)(iii) where there has been a payment of a dividend or other distribution on the Voting Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock over the first 20 Trading Days after the effective date of such Spin-Off MP O = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day from, and including, the effective date of such Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (iv) If the Corporation makes any cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock), the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O = the Conversion Rate in effect immediately prior to the record date for such distribution CR 1 = the Conversion Rate in effect immediately after the record date for such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).
Appears in 2 contracts
Sources: Exchange Agreement (Jefferies Financial Group Inc.), Exchange Agreement (Jefferies Financial Group Inc.)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall The Conversion Rate will be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment adjustments from time to time by time, without duplication, upon the Corporation in accordance with the provisions occurrence of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as any of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as followsfollowing events:
(ia) If the Corporation Company (i) issues solely shares of Voting Common Stock as a dividend or distribution on its shares of Voting Common Stock, (ii) subdivides Common Stock or if a share split or share combination is effected(iii) combines Common Stock, the Conversion Rate will be adjusted calculated based on the following formula: CR 1 = CR O times CR0 × OS 1 divided by OS O OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; and OS 1 = the number of shares of Voting Common Stock that would be outstanding immediately after such event An adjustment made pursuant giving effect to this Section 9(a)(i) shall become effective on the date immediately after (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution distribution, or (y) immediately after the effective date on which of such split subdivision or combination becomes effectiveof Common Stock, as applicablethe case may be. Any adjustment made under this Section 10.4(a) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be. If any dividend such dividend, distribution, subdivision or distribution combination described in this Section 9(a)(i10.4(a) is declared but not so paid or made, the Conversion Rate shall again will be adjusted immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declareddeclared or such subdivision or combination had not been announced.
(iib) If the Corporation issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Voting Common Stock of any rights, warrants, options or other securities warrants entitling them such holders for a period of not more than 20 sixty (60) calendar days after from the announcement date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Common Stock, Stock (or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereofStock), in either case at an exercise price per share or a conversion price per share less than the average of the Closing Sale Price of shares Prices of the Voting Common Stock on for the business day ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of date for such issuancedistribution, the Conversion Rate will be adjusted calculated based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: CR 1 = CR O times (OS O +X) divided by (OS O +Y) CR0 × OS0 + X OS0 + Y where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event distribution; CR l = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O distribution; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event distribution; X = the total number of shares of Voting Common Stock issuable pursuant to such rights. , options or warrants, options, other securities or convertible securities ; and Y = the quotient number of (A) shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, optionsincluding because the distributed rights, other securities options or convertible securities and (B) warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Voting Common Stock for over the 20 applicable ten (10) consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common StockDay period, there shall will be taken into account any consideration received by the Corporation Company receives for such rights, warrants, options, other securities options or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined in good faith by the Board Company’s board of Directorsdirectors.
(iiii) If the Corporation distributes an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the CorporationCompany’s Capital Stockcapital stock, evidences of the CorporationCompany’s indebtedness or other assets or property of the Corporation Company or any rights, options or warrants to acquire the Company’s capital stock or other securities, evidences of its Subsidiaries indebtedness or other assets or property of the Company to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: Stock (1excluding (A) dividends, dividends or distributions and rights, warrants, options, other securities options or convertible securities referred warrants as to in which an adjustment was effected under Sections 9(a)(i)or 9(a10.4(a) (iior 10.4(b); (2B) dividends or distributions paid exclusively in cashcash covered under Section 10.4(d); and (3C) Spin-Offs described in this Section 9(a)(iii) belowOffs), then the Conversion Rate will be adjusted calculated based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) CR0 × ▇▇▇ ▇▇▇ – FMV where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 ten (10) consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board Company’s board of Directorsdirectors) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Voting Common Stock as of the Open of Business on the record date Ex-Dividend Date for such distribution An distribution. Any adjustment made under the above portion of this Section 10.4(c) will become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment pursuant to the above paragraph shall be made successively whenever any formula will result in a decrease of the Conversion Rate. However, if such distribution is made not so paid or made, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will receive, in respect of each $1,000 principal amount thereof, at the same time and shall become effective upon the same terms as holders of the Common Stock, without having to convert its Bond, the amount and kind of the Relevant Distribution that such holder would have received if such holder owned a number of shares of Common Stock equal to the Conversion Rate on the day immediately after the dated fixed Record Date for the determination distribution. For purposes of stockholders entitled this Section 10.4(c)(i) (and subject in all respects to receive Section 10.4(f)):
(1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”):
(a) are deemed to be transferred with such shares of the Common Stock;
(b) are not exercisable; and
(c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c).
(2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will be deemed to terminate and expire on such date without exercise by any of the holders thereof).
(3) In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (2) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.4(c) was made:
(a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution. , deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and
(b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued.
(4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of:
(a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or
(b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then:
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and
(2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b).
(ii) With respect to an adjustment pursuant to this Section 9(a)(iii10.4(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Voting Common Stock or of shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices unit, that are, or, when issued, will be, listed or admitted for the first 20 Trading Days after the payment of such dividend or distribution shall have been made trading on a United States national securities exchange (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased calculated based on the following formula: CR 1= CR O times (= CR0 × FMV O +MP O) divided by MP O + MP0 MP0 where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution the Close of Business on the Record Date for the Spin-Off; CR 1 = the Conversion Rate in effect immediately after such distribution the Close of Business on the Record Date for the Spin-Off; FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 20 ten (10) consecutive Trading Days after Day period commencing on, and including, the effective date of such for the Spin-Off MP O (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will occur be determined on the 20th last day of the Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Day Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of for such Spin-Off. Notwithstanding anything to the contrary hereinOff to, but excluding, the relevant Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredDate.
(ivd) If the Corporation makes any an Ex-Dividend Date occurs for a cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting the Common StockStock (other than any dividend or distribution in connection with the Company’s liquidation, in an aggregate amount that, together with other cash dividends dissolution or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stockwinding up), the Conversion Rate will be adjusted recalculated based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) CR0 × ▇▇▇ ▇▇▇ – C where, CR O CR0 = the Conversion Rate in effect immediately prior to the record date Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the record date Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 ten (10) consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date of Ex-Dividend Date for such distribution distribution; and C = the amount in cash per share of Common Stock the Corporation distributes Company pays, or distributes, to all or substantially all holders of Voting the Common Stock that exceeds the Base Dividend An Stock. Any adjustment made pursuant to under this Section 9(a)(iv10.4(d) shall will become effective on the date immediately after the Close of Business on the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 9(a)(iv10.4(d) is declared but not so paid or made, the Conversion Rate shall again will be adjusted readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to Notwithstanding the Conversion Rate pursuant to this Section 9(a)(iv) shall be madeforegoing, if the Corporation distributes“C” (as defined above) is equal to or greater than “SP0” (as defined above), no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess lieu of the Base Dividendforegoing increase, to the Purchaser will receive, for each holder $1,000 principal amount of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to Bond, at the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).sam
Appears in 2 contracts
Sources: Bond Purchase Agreement (Sprint Nextel Corp), Bond Purchase Agreement (Starburst II, Inc.)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment to the Conversion Rate if Holders may participate, as a result of holding the Securities, in the transaction described below without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or makes a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effectedcombines its Common Shares, then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date of such event CR 1 dividend or distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after such event OS O Ex-Dividend Date or effective date, as applicable OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 Ex-Dividend Date or effective date, as applicable OS' = the number of shares of Voting Common Stock Shares outstanding immediately prior to such Ex-Dividend Date or effective date, as applicable, after giving pro forma effect to such event An dividend, distribution, subdivision or combination Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after 9:00 a.m., New York City time, on the date immediately after (x) Business Day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend Common Share subdivision or other distribution or (y) the date on which such split or combination becomes effective, as applicablecombination. If any dividend or distribution of the type described in this Section 9(a)(i13.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation issues Company, at any time or from time to time while any of the Securities are outstanding, distributes to holders of all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for warrants to purchase Common Shares at a period of not more than 20 days after the date of issuance thereof to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share Common Share less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date of such event CR l distribution CR' = the Conversion Rate in effect immediately after such event OS O Ex-Dividend Date OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to after such event Ex-Dividend Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities rights or convertible securities warrants Y = the number of Common Shares equal to the quotient of (Aa) the aggregate price payable to exercise all such rights, warrants, options, other securities rights or convertible securities warrants and (Bb) the average of the Closing Sale Prices Price of the Voting Common Stock Shares for the 20 10 consecutive Trading Days ending two on the Trading Days prior to Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities rights or convertible securities An warrants Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after 9:00 a.m., New York City time, on the day Business Day following the date of announcement of the issuance of such issuancerights or warrants. If, at To the end of the period during which extent that Common Shares are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares Common Shares actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of Voting Common Stock actually issued (shareholders entitled to receive such rights or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 13.04(c), rights or warrants distributed by the Company to all holders of the Common Shares entitling them to subscribe for or purchase shares of the Company’s Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such Common Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.04(c) (and no adjustment to the Conversion Price under this Section 13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.04(c) was made, (A) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (B) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares to holders of all or substantially of the Corporation’s Capital StockCommon Shares, Common Shares, evidences of the Corporation’s indebtedness or other assets or property of the Corporation property, including securities, but excluding:
(i) dividends or any of its Subsidiaries to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: (1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) Section 13.04(a);
(ii) rights or warrants referred to in Section 13.04(c); and
(2iii) dividends or distributions paid exclusively in cash; and (3) Spin-Offs described in this Section 9(a)(iii) below, then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution CR 1 CR' = the Conversion Rate in effect immediately after such distribution SP O Ex-Dividend Date SP0 = the average Current Market Price of the Closing Sale Prices of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for Day immediately preceding such distribution Ex-Dividend Date FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to 9:00 a.m., New York City time, on the day immediately after Business Day following the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless such rights are in respect of Ineligible Consideration or such rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets or property as described in this Section 13.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 9(a)(iii13.04(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will the Spin-Off shall be increased based on the following formulaformula in lieu of the formula above: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after such distribution FMV O the effective date of the Spin-Off FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one share of Voting Common Stock Share over the first 20 Trading Days after 10 consecutive Trading-Day period commencing on, and including, the effective date of such the Spin-Off MP O MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 10 consecutive Trading Days after Trading-Day period commencing on, and including, the effective date of such the Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th 10th Trading Day from, and including, the effective date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the settlement date would occur during the 10 Trading Days from, and including, the effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the settlement date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior the effective date of the Spin-Off with respect to which the settlement date would occur during the three Trading Days from, and including, the effective date of such Spin-Off. Notwithstanding anything , references to the contrary herein10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the Conversion Price shall not be reduced by more than $0.81 as a result effective date of the Spin-Off of the Crimson Wine Group. Off.
(i) If any regular, quarterly cash dividend or distribution made to all or substantially all holders of Common Shares is in excess of $0.09 per Common Share (the “Initial Dividend Threshold”), the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution described CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the Trading Day immediately preceding such Ex-Dividend Date C = the amount in cash per share the Company distributes to holders of Common Shares in excess of the Initial Dividend Threshold The Initial Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate; provided, that no adjustment will be made to the dividend threshold amount for any adjustment made to the Conversion Rate under this Section 9(a)(iii13.04(d)(i)or Section 13.04(d)(ii).
(ii) If any cash dividend or distribution that is declared but not a regular, quarterly cash dividend or distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the Trading Day immediately preceding such Ex-Dividend Date C = the amount in cash per share the Company distributes to holders of Common Shares
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Closing Sale Price of the Common Shares on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the effective date of the adjustment CR' = the Conversion Rate in effect immediately after the effective date of the adjustment AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or madepayable for shares accepted for purchase or exchange in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer expires OS' = the number of Common Shares outstanding less any Common Shares accepted for purchase or exchange in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of the Common Shares on the Trading Day next succeeding the date such tender or exchange offer expires The adjustment to the Conversion Rate under this Section 13.04(e) shall occur on the 10th Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the settlement date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the settlement date in determining the applicable Conversion Rate. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declaredmade.
(ivf) If the Corporation makes any cash dividend or distribution during any For purposes of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)this Section 13.04, the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O = the Conversion Rate in effect immediately prior to the record date for such distribution CR 1 = the Conversion Rate in effect immediately after the record date for such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) terms shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within have the meaning of Section 9(a)(i).indicated:
Appears in 2 contracts
Sources: Indenture (Biovail Corp International), Indenture (Biovail Corp International)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares The Conversion Rate shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by time, without duplication, upon the Corporation in accordance with the provisions occurrence of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as any of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as followsfollowing events:
(ia) If the Corporation Company issues solely shares of Voting Common Stock as a dividend or distribution on all or substantially all of its shares of Voting Common Stock, or if a share split the Company subdivides or share combination is effectedcombines Common Stock, the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times CR0 × OS 1 divided by OS O OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0` = the number of shares of Voting Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; and OS 1 = the number of shares of Voting Common Stock that would be outstanding immediately after giving effect to such event An dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be. Any adjustment made pursuant to under this Section 9(a)(i5.05(a) shall become effective immediately after the Close of Business on the date immediately after (x) the date fixed Record Date for the determination of stockholders entitled to receive such dividend or other distribution distribution, or (y) immediately after the Open of Business on the effective date on which of such split subdivision or combination becomes effectiveof Common Stock, as applicablethe case may be. If any dividend such dividend, distribution, subdivision or distribution combination described in this Section 9(a)(i5.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declareddeclared or subdivision or combination had not been announced.
(iib) If the Corporation issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Voting Common Stock of any rights, warrants, options or other securities warrants entitling them such holders for a period of not more than 20 60 calendar days after from the announcement date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the average of the Closing Sale Price of shares Prices of the Voting Common Stock on for the business day 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of date for such issuancedistribution, the Conversion Rate will shall be adjusted increased based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: CR 1 = CR O times (OS O +X) divided by (OS O +Y) CR0 × OS0 + X OS0 + Y where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event distribution; CR l = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O distribution; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event distribution; X = the total number of shares of Voting Common Stock issuable pursuant to such rights. , options or warrants, options, other securities or convertible securities ; and Y = the quotient number of (A) shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any increase made under this Section 5.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the exercise of such rights, options or warrants, optionsthe Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, other securities options or convertible securities and (B) warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if the Record Date for such distribution had not occurred. For purposes of this Section 5.05(b), in determining whether any rights, options or warrants entitle the Holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Voting Common Stock for over the 20 applicable 10 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common StockDay period, there shall be taken into account any consideration received by the Corporation Company receives for such rights, warrants, options, other securities options or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined in good faith by the Board of Directors.
(iiiA) If the Corporation distributes an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the CorporationCompany’s Capital Stockcapital stock, evidences of the CorporationCompany’s indebtedness or other assets or property of the Corporation Company or any of its Subsidiaries rights, options or warrants to acquire the Company’s capital stock or other securities, to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: Stock (1excluding (i) dividends, dividends or distributions and rights, warrants, options, other securities options or convertible securities referred warrants as to in Sections 9(a)(i)or 9(awhich an adjustment was effected under Section 5.05(a) or Section 5.05(b) above; (ii); (2) dividends or distributions paid exclusively in cashcash covered under Section 5.05(d); and (3iii) Spin-Offs described in this Section 9(a)(iii) belowOffs), then the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) CR0 × ▇▇▇ ▇▇▇ – FMV where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Voting Common Stock as of the Open of Business on the record date Ex-Dividend Date for such distribution An distribution. Any increase made under the above portion of this Section 5.05(c) shall become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment made pursuant to the above paragraph formula will result in a decrease of the Conversion Rate. However, if such distribution is not so paid or made, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to convert its Notes, the amount and type of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For purposes of this Section 5.05(c)(A) (and subject in all respects to Section 5.05(f)):
(1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”):
(i) are deemed to be transferred with such shares of the Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 5.05(c) (and no adjustment to the Conversion Rate under this Section 5.05(c) shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made successively whenever under this Section 5.05(c).
(2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).
(3) In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (2) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 5.05(c) was made:
(i) in the case of any such rights, options or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 5.05(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and
(ii) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
(4) For purposes of Section 5.05(a), Section 5.05(b) and this Section 5.05(c), if any dividend or distribution to which this Section 5.05(c) is made applicable includes one or both of:
(i) a dividend or distribution of shares of Common Stock to which Section 5.05(a) is applicable (the “Clause A Distribution”); or
(ii) an issuance of rights, options or warrants to which Section 5.05(b) is applicable (the “Clause B Distribution”), then:
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall become effective be deemed to be a dividend or distribution to which this Section 5.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 5.05(c) with respect to such Clause C Distribution shall then be made; and
(2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 5.05(a) and Section 5.05(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Record Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Record Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the Close of Business on the day Record Date or immediately after prior to the dated fixed for Open of Business on such effective date” within the determination meaning of stockholders entitled Section 5.05(a) or “outstanding immediately prior to receive such distribution. the Close of Business on the Record Date” within the meaning of Section 5.05(b).
(B) With respect to an adjustment pursuant to this Section 9(a)(iii5.05(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Voting Common Stock or of shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices unit, that are, or, when issued, will be, listed or admitted for the first 20 Trading Days after the payment of such dividend or distribution shall have been made trading on a U.S. national securities exchange (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will shall be increased based on the following formula: CR 1= CR O times (= CR0 × FMV O +MP O) divided by MP O + MP0 MP0 where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution the Close of Business on the Record Date for the Spin-Off; CR 1 = the Conversion Rate in effect immediately after such distribution the Close of Business on the Record Date for the Spin-Off; FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 20 10 consecutive Trading Days after Day period commencing on, and including, the effective date of such for the Spin-Off MP O (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph will occur of this Section 5.05(c) shall be determined on the 20th last day of the Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 5.05(c)(B) related to 10 Trading Day Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of for such Spin-Off. Notwithstanding anything to the contrary hereinOff to, but excluding, the relevant Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredDate.
(ivd) If the Corporation makes any an Ex-Dividend Date occurs for a cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting the Common StockStock (other than (i) any dividend or distribution in connection with the Company’s liquidation, in an aggregate amount that, together with other dissolution or winding up and (ii) a regular cash dividends or distributions made during such quarterly fiscal period, exceeds dividend that does not exceed $0.0625 0.03 per share per quarter (the “Base DividendDividend Threshold Amount”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)), the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) CR0 × SP0 – T SP0 – C where, CR O CR0 = the Conversion Rate in effect immediately prior to the record date Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the record date Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date of Ex-Dividend Date for such distribution C distribution; T = the amount in cash per share Dividend Threshold Amount; provided that if the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madea regular quarterly cash dividend, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment Threshold Amount will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).deemed to be zero; and
Appears in 1 contract
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as follows:
(ia) If the Corporation Company issues shares of Voting Company Common Stock as a dividend or distribution on shares Company Common Stock to all holders of Voting Company Common StockStock , or if the Company effects a share split or share combination is effectedcombination, the Conversion Rate will be adjusted based on the following formula: CR 1 CR1 = CR O times OS 1 divided by OS O where, CR O CR0 x OS1/OS0 where CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such event CR 1 dividend or distribution, or the effective date of such share split or share combination; CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such event OS O dividend or distribution, or the effective date of such share split or share combination; OS0 = the number of shares of Voting Company Common Stock outstanding immediately prior to the Ex-Dividend Date for such event OS 1 dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Voting Company Common Stock outstanding immediately after the Ex-Dividend Date for such event An dividend or distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this Section 9(a)(iparagraph (a) shall become effective on the date that is immediately after (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this Section 9(a)(iparagraph (a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Company issues to all or substantially all holders of Voting shares of Company Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 20 45 days after the date of issuance thereof to subscribe for or purchase shares of the Voting Company Common StockStock , or issues to all holders of Company Common Stock securities convertible into shares of Voting Company Common Stock within 20 for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per share Company Common Share or a conversion price per share Company Common Share less than the Closing Sale Price of shares of the Voting Company Common Stock on the business day Business Day immediately preceding the time of announcement of such issuance, the Conversion Rate will be adjusted based on the following formula formula: CR1 = CR0 x (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +XOS0+X)/(OS0+Y) divided by (OS O +Y) where, CR O where CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such event CR l distribution; CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such event OS O distribution; OS0 = the number of shares of Voting Company Common Stock outstanding immediately prior to the Ex-Dividend Date for such event distribution; X = the total number of shares of Voting Company Common Stock issuable pursuant to such rights. , warrants, options, other securities or convertible securities securities; and Y = the number of shares of Company Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Company Common Stock for the 20 10 consecutive Trading Days ending two Trading Days prior to on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)securities. For purposes of this Section 9(a)(iiparagraph (b), in determining whether such any rights, warrants, options, other securities or convertible securities entitle the holder holders to subscribe for or purchase purchase, or exercise a conversion right for shares of . Voting for, Company Common Stock at less than the average applicable Closing Sale Price of the Voting per Company Common StockShare, and in determining the aggregate exercise or conversion price payable for such shares of Voting Company Common StockStock , there shall be taken into account any consideration received by the Corporation Company for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined by the Board of DirectorsDirectors of the Company. If any right, warrant, option, other security or convertible security described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right, warrant, option, other security or convertible security had not been so issued.
(iiic) If the Corporation Company distributes shares of the Corporation’s Capital Stockcapital stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries Company to all or substantially all of the holders of the Corporation’s Voting Company Common Stock, excluding: :
(1i) dividends, distributions and distributions, rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(aparagraph (a) or (b) above;
(ii); (2) dividends or distributions paid exclusively in cash; and and
(3iii) Spin-Offs described below in this Section 9(a)(iii) belowparagraph (c), then the Conversion Rate will be adjusted based on the following formula: CR 1 CR1 = CR O times SP O divided by (SP O -FMVCR0 x SP0/(SP0-FMV) where, CR O where CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution CR 1 distribution; CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Company Common Stock for the 20 10 consecutive Trading Days ending two Trading Days prior to the Business Day immediately preceding the earlier of the record date or the Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share Company Common Share on the earlier of Voting Common Stock on the record date or the ex-dividend date for such distribution distribution. An adjustment to the Conversion Rate made pursuant to the above immediately preceding paragraph shall be made successively whenever any such distribution is made and shall become effective on the day immediately after the dated date fixed for the determination of stockholders holders of Company Common Stock entitled to receive such distribution. With respect If the Company distributes to an adjustment pursuant to this Section 9(a)(iii) where there has been a payment all holders of a dividend or other distribution on the Voting Company Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made Company (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Company Common Stock entitled to receive such payment of such dividend or distribution will be increased adjusted based on the following formula: CR 1= CR O times CR1 = CR0 x (FMV O +MP O) divided by MP O where, CR O FMV0+MP0)/MP0 where CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 the 10th Trading Day immediately following and including the effective date of the Spin-Off; CR1 = the new Conversion Rate in effect immediately after such distribution FMV O the 10th Trading Day immediately following and including the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Company Common Stock applicable to one share of Voting Company Common Stock Share over the first 20 10 consecutive Trading Days after the effective date of such the Spin-Off MP O Off; and MP0 = the average of the Closing Sale Prices of the Voting Company Common Stock over the first 20 10 consecutive Trading Days after the effective date of such the Spin-Off The Off. An adjustment to the Conversion Rate under made pursuant to the immediately preceding paragraph will occur on the 20th 11th Trading Day from, from and including, including the effective date of such the Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iiiparagraph (c) is declared but not paid or made, the new Conversion Rate shall again be adjusted readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ivd) If the Corporation Company makes any cash dividend or distribution during in respect of any of the Corporation’s its quarterly fiscal periods (without regard to all or substantially when paid) to all holders of Voting Company Common Stock, Stock in an aggregate amount that, together with other cash dividends or distributions made during in respect of such quarterly fiscal period, exceeds the product of $0.0625 per share 0.5125 (the “Base Reference Dividend”) (appropriately adjusted from time to time multiplied by the number of shares of Company Common Stock outstanding on the record date for any share dividends on or subdivisions of the Voting Common Stock)such distribution, the Conversion Rate will be adjusted based on the following formula: CR 1 CR1 = CR O times SP O divided by (SP O –CR0 x SP0/(SP0-C) where, CR O where CR0 = the Conversion Rate in effect immediately prior to the record date Ex-Dividend Date for such distribution CR 1 distribution; CR1 = the new Conversion Rate in effect immediately after the record date Ex-Dividend Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Company Common Stock for the 20 10 consecutive Trading Days ending two Trading Days prior to the business day immediately preceding the earlier of the record date of or the day prior to the Ex-Dividend Date for such distribution distribution; and C = the amount in cash per share Company Common Share that the Corporation Company distributes to holders of Voting Company Common Stock in respect of such quarterly fiscal period that exceeds the Base Dividend Reference Dividend. An adjustment to the Conversion Rate made pursuant to this Section 9(a)(ivparagraph (d) shall become effective on the date immediately after the Record Date date fixed for the determination of stockholders holders of Company Common Stock entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(ivparagraph (d) is declared but not so paid or made, the new Conversion Rate shall again be adjusted readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Reference Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(iparagraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustment will be effected by multiplying the Base Reference Dividend by a fraction, the numerator of which will equal OS O the Conversion Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal OS 1the Conversion Rate as adjusted.
(e) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for Company Common Stock to the extent that the cash and value of any other consideration included in the payment per Company Common Share exceeds the Closing Sale Price of a Company Common Share on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”), the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x (AC + (SP1 x OS1))/(SP1 x OS0) where CR0 = the Conversion Rate in effect immediately prior to the date such tender or exchange offer expires; CR1 = the new Conversion Rate immediately following the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company) paid or payable for Company Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Company Common Stock outstanding immediately prior to the date such tender or exchange offer expires; OS1 = the number of shares of Company Common Stock outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP1 = the average of the Closing Sale Prices of Company Common Stock for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made. Any adjustment to the Conversion Rate made pursuant to this paragraph (e) shall become effective on the date immediately following the Expiration Time. If the Company or one of its subsidiaries is obligated to purchase Company Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing, in each casethe event of an adjustment to the Conversion Rate pursuant to paragraph (d) or (e) above, within in no event will the meaning Conversion Rate exceed 17.9051 shares of Company Common Stock, subject to adjustment pursuant to paragraphs (a), (b) and (c) above.
(g) If the Company has in effect a rights plan while any Notes remain Outstanding, Holders of Notes will receive, upon a conversion of Notes in respect of which the Company has elected to deliver Net Shares, in addition to such Net Shares, rights under the Company’s stockholder rights agreement unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Company Common Stock. If the rights provided for in the rights plan adopted by the Company have separated from the Company Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of Company Common Stock that the Company elects to deliver as Net Shares upon conversion of Notes, the Conversion Rate will be adjusted at the time of separation as if the Company had distributed to all holders of Company Common Stock capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In lieu of any such adjustment, the Company may amend such applicable stockholder rights agreement to provide that upon a conversion of Notes the Holders will receive, in addition to Company Common Stock that the Company elects to deliver as Net Shares upon such conversion, the rights which would have attached to such Company Common Stock if the rights had not become separated from the Company Common Stock under such applicable stockholder rights agreement. To the extent that the Company adopts any future stockholder rights agreement, upon a conversion of Notes in respect of which the Company elects to deliver Company Common Stock as Net Shares, a Holder of Notes shall receive, in addition to such Company Common Stock, the rights under the future stockholder rights agreement whether or not the rights have separated from Company Common Stock at the time of conversion and no adjustment will be made in accordance with paragraph (c) or otherwise. In addition to the adjustments pursuant to paragraphs (a) through (g) above, the Company may increase the Conversion Rate in order to avoid or diminish any income tax to holders of Company Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Company Common Stock) or from any event treated as such for income tax purposes. The Company may also, from time to time, to the extent permitted by applicable law, increase the Conversion Rate by any amount for any period if the Company has determined that such increase would be in the best interests of the Company. If the Company makes such determination, it will be conclusive and Company will mail to Holders of the Notes a notice of the increased Conversion Rate and the period during which it will be in effect at least fifteen (15) days prior to the date the increased Conversion Rate takes effect in accordance with applicable law. If, in connection with any adjustment to the Conversion Rate as set forth in this Section 2.14 a Holder shall be deemed for U.S. federal tax purposes to have received a distribution or an Additional Interest payment, the Company may set off any withholding tax it reasonably believes it is required to collect with respect to any such deemed distribution or payment against cash payments of interest in accordance with the provisions of Section 9(a)(i).2.05 hereof or from cash and Company Common Stock, if any, otherwise deliverable to a Holder upon a conversion of Notes in accordance with the provisions of Section 2.12 hereof or a redemption or repurchase of a Note in accordance with the provisions of Section 2.07, 2.08 or 2.09 hereof. The Company will not make any adjustment to the Conversion Rate if Holders of the Notes are permitted to participate, on an as-converted basis, in the tr
Appears in 1 contract
Sources: Second Supplemental Indenture (Bre Properties Inc /Md/)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or make a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effected, combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR 1 CR’ = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 OS’ = the number of shares of Voting Common Stock Shares outstanding immediately after such event An Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after the opening of business on the date immediately after (x) day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend or other distribution or (y) the date on which such share split or combination becomes effective, as applicableshare combination. If any dividend or distribution of the type described in this Section 9(a)(i13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for a period of not more than 20 days after the date of issuance thereof warrants to subscribe for or purchase shares of the Voting Common Stock, Shares (or securities convertible into shares of Voting or exchangeable or exercisable for Common Stock within 20 days after the issuance thereofShares) at a price per share (or having a conversion, in either case at an exchange or exercise price per share or a conversion price per share share) less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR l CR’ = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares Common Shares outstanding on the close of Voting Common Stock outstanding immediately prior to business on the next Business Day following such event Record Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities or convertible securities rights Y = the quotient number of (A) Common Shares equal to the aggregate offering price payable to exercise that the total number of shares so offered would purchase at such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices Price of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance Record Date of such rights, warrants, options, other securities issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or convertible securities An warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. If, at To the end of the period during which extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares of Voting Common Stock actually issued Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the number event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all holders of its Common Shares, Common Shares of the holders Company, evidences of the Corporation’s Voting Common Stockits indebtedness or assets, including securities, but excluding: :
(1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2i) dividends or distributions paid exclusively referred to in cashSection 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and and
(3iii) Spin-Offs described dividends or distributions referred to in this Section 9(a)(iii) below, 13.4(d); then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR’ = the Conversion Rate in effect immediately after such distribution SP O SP0 = the average Current Market Price of Common Shares on the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date Record Date for such distribution FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to the opening of business on the day immediately after following the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 9(a)(iii13.4(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock shareholders entitled to receive such payment of such dividend or the distribution will shall be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR’ = the Conversion Rate in effect immediately after such distribution FMV O FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one common share of Voting Common Stock over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off MP O distribution on NYSE MKT or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 10 consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off distribution on The NYSE MKT or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th fourteenth Trading Day from, and including, after the effective date on which “Ex-Dividend Trading” commences for such distribution on NYSE MKT or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of such Spin-Off. Notwithstanding anything to the contrary hereinCommon Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR’ = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price shall not be reduced by more than $0.81 as a result of one of the Spin-Off Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Crimson Wine Group. If any Record Date for such dividend or distribution; provided that if such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to the Corporation’s quarterly fiscal periods to all extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)exchange offer is announced, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to on the record date for such distribution CR 1 tender or exchange offer expires CR’ = the Conversion Rate in effect immediately after on the record day next succeeding the date for such distribution SP O tender or exchange offer expires AC = the average fair market value (as determined by the Board of Directors) of the Closing Sale Prices of the Voting Common Stock aggregate consideration paid or payable for the 20 consecutive Trading Days ending two Trading Days prior to the record date of shares purchased in such distribution C tender or exchange offer OS0 = the amount number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS’ = the number of Common Shares outstanding less any shares purchased in cash per share the Corporation distributes tender or exchange offer at the time such tender or exchange offer expires SP’ = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made repurchase shares pursuant to this Section 9(a)(iv) shall become effective on any such tender or exchange offer, but the date immediately after the Record Date for the determination of stockholders entitled to receive Company is permanently prevented by applicable law from effecting any such dividend purchases or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madeall such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declared. No adjustment to the Conversion Rate pursuant to made.
(f) For purposes of this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction13.4, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within following terms shall have the meaning of Section 9(a)(i).indicated:
Appears in 1 contract
Sources: Indenture (Endeavour Silver Corp)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares The Conversion Rate shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by only as set forth below; provided, however, that the Corporation in accordance with the provisions of this Section 9. References Company shall not make any adjustments to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) if Holders participate (as a result of holding the Notes, and at the same time as the holders of Common Stock participate) in any of the transactions described in this Section 12.05 as if such Holders held a share split or share combination. The number of shares of Common Stock equal to the Conversion Rate shall be adjusted from time immediately prior to time the event that otherwise would result in a Conversion Rate adjustment, multiplied by the Corporation as follows:principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes.
(ia) If the Corporation Company issues shares of Voting Common Stock as a dividend or distribution on shares of Voting Common Stock, or if the Company effects a share split or share combination is effectedcombination, the Conversion Rate will be adjusted based on the following formula: CR 1 CR’ = CR O times OS 1 divided by OS O CR0 x OS’ OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such event CR 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such event OS O dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such event OS 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; and OS’ = the number of shares of Voting Common Stock outstanding immediately after giving effect to such event An dividend, distribution, share split or share combination. Any adjustment made pursuant to this Section 9(a)(i12.05(a) shall become effective on the date immediately after (x) the date fixed open of business on the Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution or (y) the open of business on the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this Section 9(a)(i12.05(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation issues Company distributes to all or substantially all holders of Voting Common Stock any rights, warrants, options rights or other securities warrants entitling them to purchase, for a period of not more than 20 45 days after the declaration date of issuance thereof to subscribe for or purchase the distribution, shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares average of the Voting Last Reported Sale Prices of the Common Stock on for the business day ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of declaration date for such issuancedistribution, the Conversion Rate will be adjusted based on the following formula (provided that formula: CR’ = CR0 x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution; OS0 = the number of shares of the Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution. For the purposes of this Section 12.05(b) in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Prices of the Common Stock, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable upon exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors. Any increase made under this Section 12.05(b) will be readjusted to the extent that made successively whenever any such rights, options or warrants options, are distributed and shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If any right or other securities or convertible securities are warrant described in this Section 12.05(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O = the new Conversion Rate shall be decreased to the Conversion Rate that would then be in effect immediately prior had the increase with respect to such event CR l = the Conversion Rate in effect immediately after such event OS O = the number of shares of Voting Common Stock outstanding immediately prior to such event X = the total number of shares of Voting Common Stock issuable pursuant to such rights. warrants, options, other securities or convertible securities Y = the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities options or convertible securities An adjustment warrants been made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date basis of announcement delivery of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or only the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)delivered. For purposes of this Section 9(a)(ii)If such rights or warrants are not so distributed, in determining whether such rightsthe Conversion Rate shall be decreased, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price effective as of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by date the Board of DirectorsDirectors determines not to distribute such rights or warrants, to the Conversion Rate that would then be in effect if the distribution had not been declared.
(iiic) If the Corporation Company distributes shares of the Corporation’s Capital Stock, evidences of the CorporationCompany’s indebtedness or other assets or property of or rights, options or warrants to acquire the Corporation Company’s Capital Stock or any of its Subsidiaries other securities, to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: :
(1i) dividends, distributions and rightsdistributions, warrants, options, other securities rights or convertible securities referred warrants as to in Sections 9(a)(i)or 9(awhich an adjustment was effected pursuant to Section 12.05(a) or Section 12.05(b) of this Supplemental Indenture;
(ii); (2) dividends or distributions paid exclusively in cashcash as to which an adjustment was effected pursuant to Section 12.05(d) of this Supplemental Indenture; and and
(3iii) Spinspin-Offs described offs to which the provisions set forth below in this Section 9(a)(iii12.05(c) belowshall apply, then the Conversion Rate will be adjusted based on the following formula: CR 1 CR’ = CR O times SP O divided by (SP O -FMV) CR0 x ▇▇▇ ▇▇▇ – FMV where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution CR 1 distribution; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution SP O distribution; SP0 = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for over the 20 ten consecutive Trading Days Day period ending two on and including the Trading Days prior to Day immediately preceding the record date Ex–Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences evidence of indebtedness, assets assets, property, rights or property warrants, distributed with respect to each outstanding share of Voting Common Stock on the record date Ex-Dividend Date for such distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 12.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. An adjustment to the Conversion Rate made pursuant to the above paragraph shall be made successively whenever any such distribution is made and this Section 12.05(c) shall become effective on the day immediately after the dated fixed open of business on the Ex-Dividend Date for the determination of stockholders entitled to receive such applicable distribution. With respect to an adjustment pursuant to this Section 9(a)(iii12.05(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock or of shares of capital stock Capital Stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend that are, or distribution shall have been made when issued, will be, traded on a U.S. national securities exchange (such transaction herein. referred to as each, a “Spinspin-Offoff”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record tenth Trading Day immediately following, and including, the effective date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution the spin-off will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O CR’ = CR0 x FMV0 + MP0 MP0 where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 the tenth Trading Day immediately following, and including, the effective date of the spin-off; CR’ = the new Conversion Rate in effect immediately after such distribution FMV O the tenth Trading Day immediately following, and including, the effective date of the spin-off; FMV0 = the average of the Closing Last Reported Sale Prices of the capital stock Capital Stock or similar equity interest distributed to holders of Voting the Common Stock applicable to one share of Voting Common Stock over the first 20 Trading Days after the effective date of such Spin-Off MP O = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 ten consecutive Trading Days after the effective date of such Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day fromperiod immediately following, and including, the effective date of such Spinthe spin-Offoff; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the effective date of the spin-off. Notwithstanding anything The adjustment to the contrary hereinConversion Rate described in this Section 12.05(c) shall occur immediately after the tenth Trading Day immediately following, and including, the Conversion Price shall not be reduced by more than $0.81 as a result effective date of the Spinspin-Off off; provided that, for purposes of determining the Crimson Wine GroupConversion Rate in respect of any conversion during the ten Trading Days following the effective date of any spin-off, references within the portion of this Section 12.05(c) related to “spin-offs” to ten trading days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such spin-off and the relevant Conversion Date. If any such dividend or distribution described in this Section 9(a)(iii12.05(c) is declared but not so paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 12.05(c) (and subject in all respect to Section 12.11 of this Supplemental Indenture), rights, options or warrants distributed by the Company to all holders of its Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 12.05(c) (and no adjustment to the Conversion Rate under this Section 12.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Supplemental Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate will be adjusted based on the following formula: CR’ = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share the Company distributes to holders of Common Stock. Such an adjustment to the Conversion Rate made pursuant to this Section 12.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this Section 12.05(d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of the Corporation’s quarterly fiscal periods to all its Subsidiaries makes a payment in respect of a tender offer or substantially all holders of Voting exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 the payment per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 CR’ = CR O times SP O divided by CR0 x AC + (SP O –CSP’ x OS’) OS0 x SP’ where, CR O CR0 = the Conversion Rate in effect immediately prior to at the record close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date for such distribution CR 1 tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or exchange offer (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS’ = the number of shares of Common Stock outstanding immediately after the record date for expiration of such distribution SP O tender or exchange offer (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender or exchange offer); and SP’ = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for over the 20 ten consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective Day period commencing on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on Trading Day next succeeding the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).tender or
Appears in 1 contract
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or make a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effected, combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR 1 CR' = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 OS' = the number of shares of Voting Common Stock Shares outstanding immediately after such event An Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after the opening of business on the date immediately after (x) day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend or other distribution or (y) the date on which such share split or combination becomes effective, as applicableshare combination. If any dividend or distribution of the type described in this Section 9(a)(i11.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for a period of not more than 20 days after the date of issuance thereof warrants to subscribe for or purchase shares of the Voting Common Stock, Shares (or securities convertible into shares of Voting or exchangeable or exercisable for Common Stock within 20 days after the issuance thereofShares) at a price per share (or having a conversion, in either case at an exchange or exercise price per share or a conversion price per share share) less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR l CR' = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares Common Shares outstanding on the close of Voting Common Stock outstanding immediately prior to business on the next Business Day following such event Record Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities or convertible securities rights Y = the number of Common Shares equal to the quotient of (A) the aggregate price payable to exercise all such rights, warrants, options, other securities rights or convertible securities warrants and (B) the average of the Closing Sale Sales Prices of the Voting Common Stock Shares for the 20 10 consecutive Trading Days ending two Trading Days prior to on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities rights or convertible securities An warrants Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. If, at To the end of the period during which extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares of Voting Common Stock actually issued Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the number event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 11.04(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 11.04(b) (and no adjustment to the Conversion Price under this Section 11.04(b)will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 11.04(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 11.04(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all holders of its Common Shares, Common Shares of the holders Company, evidences of the Corporation’s Voting Common Stockits indebtedness or assets, including securities, but excluding: :
(1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2i) dividends or distributions paid exclusively referred to in cashSection 11.04(a);
(ii) rights or warrants referred to in Section 11.04(b); and and
(3iii) Spin-Offs described dividends or distributions referred to in this Section 9(a)(iii) below, 11.04(d); then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR' = the Conversion Rate in effect immediately after such distribution SP O SP0 = the average Current Market Price of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date Shares on such Record Date for such distribution FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company and subject to the approval of the Toronto Stock Exchange) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to the opening of business on the day immediately after following the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 11.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 9(a)(iii11.04(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “"Spin-Off”"), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock shareholders entitled to receive such payment of such dividend or the distribution will shall be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR' = the Conversion Rate in effect immediately after such distribution FMV O FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one common share of Voting Common Stock over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off MP O distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th fourteenth Trading Day from, and including, after the effective date on which "Ex-Dividend Trading" commences for such distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of such Spin-Off. Notwithstanding anything to the contrary hereinCommon Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price shall not be reduced by more than $0.81 as a result of one of the Spin-Off Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Crimson Wine Group. If any Record Date for such dividend or distribution; provided that if such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to the Corporation’s quarterly fiscal periods to all extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)exchange offer is announced, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to on the record date for such distribution CR 1 tender or exchange offer expires CR' = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately after the record date for such distribution SP O = tender or exchange offer expires. If the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior Company is obligated to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made repurchase shares pursuant to this Section 9(a)(iv) shall become effective on any such tender or exchange offer, but the date immediately after the Record Date for the determination of stockholders entitled to receive Company is permanently prevented by applicable law from effecting any such dividend purchases or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madeall such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declared. No adjustment to the Conversion Rate pursuant to made.
(f) For purposes of this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction11.04, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within following terms shall have the meaning of Section 9(a)(i).indicated:
Appears in 1 contract
Conversion Rate Adjustments. Each share Fixed Conversion Rate shall be adjusted as provided below, except that no adjustment shall be made to the Fixed Conversion Rates if Holders of the Series A Cumulative Convertible Preferred Shares shall be convertible into Bonds participate, as a result of holding the Bonds, in any of the transactions described in Section 3.1(a) (but only with respect to an issue by the Guarantor of ordinary shares either as a dividend or as a distribution on its ordinary shares), Section 3.1(b), Section 3.1(c) and Section 3.1(d) below at the same time as holders of ordinary shares of the Guarantor without having to convert their Bonds as if they held a number shares of Voting Common Stock ADSs equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Maximum Conversion Rate in effect on prior to the relevant ex-dividend date or effective date. Notwithstanding anything in this Section 9, :
(a) If the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) Guarantor issues ordinary shares as a result of dividend or distribution on its ordinary shares, or if the Guarantor effects a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as follows:
(i) If the Corporation issues shares of Voting Common Stock as a dividend or distribution on shares of Voting Common Stock, or if a share split or share combination is effected, the each Fixed Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date of such event CR 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or combination, as applicable; CR1 = the Fixed Conversion Rate in effect immediately after the open of business on such event OS O ex-dividend date or effective date; OS0 = the number of the Guarantor’s ordinary shares of Voting Common Stock outstanding immediately prior to the open of business on such event OS 1 ex-dividend date or such effective date; OS1 = the number of the Guarantor’s ordinary shares of Voting Common Stock outstanding immediately after giving effect to such event An dividend, distribution, share split or share combination; ADS0 = the number of ordinary shares of the Guarantor represented by an ADS immediately prior to the open of business on the ex-dividend date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or combination, as applicable; and ADS1 = the number of ordinary shares of the Guarantor represented by an ADS immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made pursuant to under this Section 9(a)(i3.1(a) shall become effective immediately after the open of business on the ex-dividend date immediately after (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution distribution, or (y) immediately after the open of business on the effective date on which for such share split or combination becomes effectiveshare combination, as applicable. If any dividend or distribution of the type described in this Section 9(a)(i3.1(a) is declared but not so paid or made, the each Fixed Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Guarantor’s Board of Directors determines not to pay such dividend or distribution, to the applicable Fixed Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Guarantor issues to all or substantially all holders of Voting Common Stock its ordinary shares any rights, warrants, options or other securities warrants entitling them for a period of not more than 20 60 calendar days after the announcement date of such issuance thereof to subscribe for or purchase ordinary shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case Guarantor at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares current market price of the Voting Common Stock Guarantor’s ordinary shares on the business day immediately preceding date of the time first public announcement of announcement the terms of such issuance, the each Fixed Conversion Rate will be adjusted based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O = the Conversion Rate in effect immediately prior to such event CR l = the Conversion Rate in effect immediately after such event OS O = the number of shares of Voting Common Stock outstanding immediately prior to such event X = the total number of shares of Voting Common Stock issuable pursuant to such rights. warrants, options, other securities or convertible securities Y = the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by the Board of Directors.
(iii) If the Corporation distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: (1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2) dividends or distributions paid exclusively in cash; and (3) Spin-Offs described in this Section 9(a)(iii) below, then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for such distribution FMV = the Fair Market Value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock on the record date for such distribution An adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective on the day immediately after the dated fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 9(a)(iii) where there has been a payment of a dividend or other distribution on the Voting Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock over the first 20 Trading Days after the effective date of such Spin-Off MP O = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day from, and including, the effective date of such Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iv) If the Corporation makes any cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock), the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O = the Fixed Conversion Rate in effect immediately prior to the record open of business on the ex-dividend date for such distribution CR 1 issuance; CR1 = the Fixed Conversion Rate in effect immediately after the record date for open of business on such distribution SP O ex-dividend date; OS0 = the average number of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days Guarantor’s ordinary shares outstanding immediately prior to the record date open of business on such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such ex-dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).date;
Appears in 1 contract
Sources: Second Supplemental Indenture (AngloGold Ashanti Holdings PLC)
Conversion Rate Adjustments. Each share of The Company shall adjust the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment conversion rate from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as follows:
(i) If the Corporation Company issues shares of Voting Common Stock as a dividend or distribution on shares of Voting Common Stock to all holders of Common Stock, or if the Company effects a share split or share combination is effectedcombination, the Conversion Rate will conversion rate shall be adjusted based on the following formula: CR 1 CR1 = CR O times CR0 x OS1/OS 1 divided by OS O where, CR O 0 where CR0 = the Conversion Rate conversion rate in effect immediately prior to the ex-dividend date for such event CR 1 dividend or distribution, or the effective date of such share split or share combination; CR1 = the Conversion Rate new conversion rate in effect immediately on and after the ex-dividend date for such event OS O dividend or distribution, or the effective date of such share split or share combination; OS1 = the number of shares of Voting Common Stock outstanding immediately after such dividend or distribution, or the effective date of such share split or share combination; and OS0 = the number of shares of Common Stock outstanding immediately prior to such event OS 1 = dividend or distribution, or the number effective date of shares of Voting Common Stock outstanding immediately after such event An share split or share combination. Any adjustment made pursuant to this Section 9(a)(iparagraph (i) shall become effective at the open of business on the date immediately after (x) the ex-dividend date fixed for the determination of stockholders entitled to receive such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this Section 9(a)(iparagraph (i) is declared but not so paid or made, the Conversion Rate new conversion rate shall again be adjusted readjusted to the Conversion Rate conversion rate that would then be in effect if such dividend or distribution had not been declared.
(ii) If the Corporation issues Company distributes to all or substantially all holders of Voting Common Stock any rights, warrantswarrants or options entitling them, options or other securities entitling them for a period of expiring not more than 20 45 days after the date of issuance thereof of such rights, warrants or options, to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise a price per share or a conversion price per share that is less than the Closing Sale Price per share of shares of the Voting Common Stock on the business day immediately preceding the time of announcement of such issuancedistribution, the Conversion Rate will be adjusted Company shall adjust the conversion rate based on the following formula formula: CR1 = CR0 x (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +XOS0+X)/(OS 0+Y) divided by (OS O +Y) where, CR O where CR0 = the Conversion Rate conversion rate in effect immediately prior to the ex-dividend date for such event CR l distribution; CR1 = the Conversion Rate new conversion rate in effect immediately on and after the ex-dividend date for such event OS O distribution; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the ex-dividend date for such event distribution; X = the total aggregate number of shares of Voting Common Stock issuable pursuant to such rights. warrants, warrants or options, other securities or convertible securities ; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities warrants or convertible securities options and (B) the average of the Closing Sale Prices Price per share of the Voting Common Stock for the 20 10 consecutive Trading Days ending two Trading Days prior to on the business day immediately preceding the date of announcement for the issuance of such rights, warrants, warrants or options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(iiparagraph (ii), in determining whether such any rights, warrants, options, other securities warrants or convertible securities options entitle the holder holders of shares of Common Stock to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average applicable Closing Sale Price per share of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation Company receives for such rights, warrants, options, other securities warrants or convertible securities options and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined by the Board Company’s board of Directorsdirectors. If any right, warrant or option described in this paragraph (ii) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Company shall adjust the new conversion rate to the conversion rate that would then be in effect if such right, warrant or option had not been so issued.
(iii) If the Corporation Company distributes shares of the Corporation’s Capital Stockits capital stock, evidences evidence of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: excluding (1A) dividends, distributions and distributions, rights, warrants, options, other securities warrants or convertible securities options referred to in Sections 9(a)(i)or 9(aparagraph (i) or (ii)) above; (2B) dividends or distributions paid exclusively in cash; and (3C) Spinspin-Offs offs, as described below in this Section 9(a)(iiiparagraph (iii) below, then the Conversion Rate will be adjusted Company shall adjust the conversion rate based on the following formula: CR1 = CR0 x SP0/(SP 0 – FMV) where CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O 0 = the Conversion Rate conversion rate in effect immediately prior to the ex-dividend date for such distribution CR 1 distribution; CR1 = the Conversion Rate new conversion rate in effect immediately on and after the ex-dividend date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices Price per share of the Voting Common Stock for the 20 10 consecutive Trading Days ending two Trading Days prior to on the record business day immediately preceding the ex-dividend date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board Company’s board of Directorsdirectors) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock on the earlier of the record date or the ex-dividend date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Company is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Series D Preferred Stock shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Company are distributed to holders of Common Stock, for each share of Series D Preferred Stock, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Company such holder of Series D Preferred Stock would have received had such holder of Series D Preferred Stock owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the conversion rate in effect on the ex-dividend date for such distribution, and the aggregate liquidation preference of Series D Preferred Stock held by such holder and the denominator of which is twenty-five ($25.00). An adjustment to the conversion rate made pursuant to the above immediately preceding paragraph shall be made successively whenever any such distribution is made and shall become effective on the day immediately after the dated fixed ex-dividend date for the determination of stockholders entitled to receive such distribution. With respect If the Company distributes to an adjustment pursuant to this Section 9(a)(iii) where there has been a payment all holders of a dividend or other distribution on the Voting Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary one of the Company’s subsidiaries or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spinspin-Offoff”), including, for ) the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate conversion rate in effect immediately before the close 10th Trading Day from and including the effective date of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will spin-off shall be increased adjusted based on the following formula: CR1 = CR0 x (FMV0+MP 0 )/ MP0 where CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O 0 = the Conversion Rate conversion rate in effect immediately prior to such distribution CR 1 the 10th Trading Day immediately following, and including, the effective date of the spin-off; CR1 = the Conversion Rate new conversion rate in effect immediately on and after such distribution FMV O the 10th Trading Day immediately following, and including, the effective date of the spin-off; FMV0 = the average of the Closing Sale Prices per share of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock over the first 20 10 consecutive Trading Days after the effective date of such Spinthe spin-Off MP O off; and MP0 = the average of the Closing Sale Prices per share of the Voting Common Stock over the first 20 10 consecutive Trading Days after the effective date of such Spinthe spin-Off The off. An adjustment to the Conversion Rate under conversion rate made pursuant to the immediately preceding paragraph will shall occur on the 20th 10th Trading Day fromfrom and including the effective date of the spin-off; provided that in respect of any conversion within the 10 Trading Days following the effective date of any spin-off, and including, references within this paragraph (iii) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spinspin-Off. Notwithstanding anything to the contrary herein, off and the Conversion Price shall not be reduced by more than $0.81 as a result of Date in determining the Spin-Off of the Crimson Wine Groupapplicable conversion rate. If any such dividend or distribution described in this Section 9(a)(iiiparagraph (iii) is declared but not paid or made, the Conversion Rate new conversion rate shall again be re-adjusted to be the Conversion Rate conversion rate that would then be in effect if such dividend or distribution had not been declared.
(iv) If the Corporation Company makes any cash dividend or distribution to all holders of outstanding shares of Common Stock (excluding any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up) during any of the Corporation’s its quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds the product of $0.0625 per share 0.31 (subject to adjustment) (the “Base Dividendreference dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock), multiplied by the Conversion Rate will number of shares of Common Stock outstanding on the record date for such distribution, the conversion rate shall be adjusted based on the following formula: CR 1 CR1 = CR O times SP O divided by (SP O –CR0 x SP0/(SP 0 – C) where, where CR O 0 = the Conversion Rate conversion rate in effect immediately prior to the record ex-dividend date for such distribution CR 1 distribution; CR1 = the Conversion Rate new conversion rate in effect immediately after the record ex-dividend date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices Price per share of the Voting Common Stock for the 20 10 consecutive Trading Days ending two Trading Days on the business day immediately preceding the earlier of the record date or the day prior to the record ex-dividend date of for such distribution distribution; and C = the amount in cash per share that the Corporation Company distributes to holders of Voting Common Stock that exceeds the Base Dividend reference dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Series D Preferred Stock shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each share of Series D Preferred Stock, the amount of cash such holder of Series D Preferred Stock would have received had such holder of Series D Preferred Stock owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the conversion rate in effect on the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Series D Preferred Stock held by such holder and the denominator of which is twenty-five ($25.00). An adjustment to the conversion rate made pursuant to this Section 9(a)(ivparagraph (iv) shall become effective on the ex-dividend date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(ivparagraph (iv) is declared but not so paid or made, the Conversion Rate new conversion rate shall again be re-adjusted to the Conversion Rate conversion rate that would then be in effect if such dividend or distribution had not been declared. No The reference dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate conversion rate; provided that no adjustment shall be made to the reference dividend amount for any adjustment made to the conversion rate under this paragraph (iv). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph (iv) as a result of a distribution that is not a quarterly dividend, the reference dividend amount shall be deemed to be zero.
(v) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to this Section 9(a)(iv) such tender offer or exchange offer, the conversion rate shall be made, if adjusted based on the Corporation distributes, no later than 20 days after following formula: CR1 = CR0 × (AC + (SP1 × OS1))/(SP 1 × OS0) where CR 0 = the payment conversion rate in effect on the day immediately following the date such tender or exchange offer expires; CR1 = the conversion rate in effect on the second day immediately following the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Company’s board of directors) paid or payable for any aforesaid cash dividend or distribution in excess shares of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) purchased in such tender or exchange offer; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the date such tender or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP1 = the Closing Sale Price per share of Common Stock for the Trading Day immediately following the date such tender or exchange offer expires. If the application of the foregoing formula would result in a decrease in the conversion rate, no adjustment to the conversion rate shall be made. Any adjustment to the conversion rate made pursuant to this paragraph (v) shall become effective on the second day immediately following the date such tender offer or exchange offer expires. If the Company or one of its subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the Company shall re-adjust the new conversion rate to be the conversion rate that would be in effect if such tender or exchange offer had not been made.
(vi) If the Company has in effect a rights plan while any shares of Series D Preferred Stock remain outstanding, holders of shares of Series D Preferred Stock shall receive, upon a conversion of such shares in respect of which the Company has elected to deliver shares of Common Stock, in addition to such shares of Common Stock, rights under the Company’s stockholder rights agreement unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from Common Stock. If the rights provided for in any rights plan that the Company’s board of directors may adopt have separated from the Common Stock in which accordance with the provisions of the applicable stockholder rights agreement so that holders of shares of Series D Preferred Stock would not be entitled to receive any rights in respect of Common Stock that the Company elects to deliver upon conversion of shares of Series A Cumulative Convertible D Preferred Shares held by such holder is convertible on Stock, the date preceding Company shall adjust the date conversion rate at the time of such payment separation as if the Company had distributed to such holder. The Base Dividend all holders of the Company’s capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (iii) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights.
(vii) Notwithstanding the foregoing, in the event of an adjustment to the conversion rate pursuant to paragraphs (iv) and (v) above, in no event shall be the conversion rate exceed 0.6997 shares of Common Stock per $25.00 liquidation preference, subject to adjustment pursuant to paragraphs (i), (ii) and (iii) above. In no event shall the Conversion Price be reduced below $0.01, subject to adjustment for share splits and combinations and similar events.
(viii) The Company shall not make any adjustment to the conversion rate if holders of shares of Series D Preferred Stock are permitted to participate, on account an as-converted basis, in the transactions described in paragraphs (i) through (vi) above.
(ix) The conversion rate shall not be adjusted except as specifically set forth in this Section 8 to these Articles Supplementary. Without limiting the foregoing, the conversion rate shall not be adjusted for (A) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities or those of the Operating Partnership and the investment of additional optional amounts in shares of Common Stock under any plan; (B) the issuance of any shares of Common Stock or options or rights to purchase such shares pursuant to any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fractionCompany’s present or future employee, the numerator of which will equal OS O and the denominator of which will equal OS 1director, in each case, within the meaning of Section 9(a)(i).
Appears in 1 contract
Sources: Revolving Credit Agreement (Digital Realty Trust, L.P.)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i(a) as a result of a share split or share combination. The applicable Conversion Rate shall be adjusted from time to time by the Corporation Issuer as follows:, except that the Issuer will not make any adjustments to the Conversion Rate if Holders participate (as a result of holding Notes and at the same time as ADS holders participate) in any of the transactions described below as if such Holders held a number of ADSs equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders without having to convert their Notes. A Holder will be deemed to have so participated if the transaction results in an issuance of securities or a distribution of other property that are held by the ADS depositary or the CPO trustee (to the extent required to be later distributed by the CPO trustee to the ADS depository for the benefit of such Holders of the Notes) at the time of conversion of such Notes into ADSs.
(i) If the Corporation Issuer issues shares of Voting Common Stock solely Ordinary Shares as a dividend or any other distribution (including by recapitalization of retained earnings) on shares of Voting Common Stockall or substantially all Ordinary Shares, or if the Issuer effects a share split or share combination is effectedof its Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times CR0 × OS 1 divided by OS O OS0 where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to such event CR 1 = the Conversion Rate in effect immediately after such event OS O = the number open of shares of Voting Common Stock outstanding immediately prior to such event OS 1 = the number of shares of Voting Common Stock outstanding immediately after such event An adjustment made pursuant to this Section 9(a)(i) shall become effective business on the date Business Day immediately after following (x) the date fixed for the determination of stockholders holders of Ordinary Shares entitled to receive such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicableapplicable (such date specified in clause (x) or (y), the “Dividend Record Date”); CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Dividend Record Date; OS0 = the number of Ordinary Shares outstanding immediately prior to the open of business on the Dividend Record Date; and OS = the number of Ordinary Shares that would have been outstanding immediately prior to the open of business on the Dividend Record Date as adjusted to take into account such dividend, distribution, split or combination. If any dividend or distribution of the type described in this Section 9(a)(iclause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or the outstanding Ordinary Shares are not split or combined, as the case may be, the Conversion Rate shall again be adjusted immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the Issuer’s shareholders’ meeting or Board of Directors determines not to pay such dividend or distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to have been paid, or (in the case of a stock split or combination) the date on which such split or combination was to have been effective, to the Conversion Rate that would then be in effect if such dividend dividend, distribution, share split or distribution share combination had not been declareddeclared or announced.
(ii) If the Corporation issues Issuer distributes to all or substantially all holders of Voting Common Stock Ordinary Shares any rights, warrantsoptions, options warrants or other securities entitling them for a period of not more than 20 45 calendar days after from the record date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Common Stock, Ordinary Shares (or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereofOrdinary Shares), in either case at an exercise a price per share Ordinary Share (or a conversion price per share Ordinary Share) less than the Closing Sale Price of shares average of the Voting Common Stock on Last Reported Sale Prices of the business day Ordinary Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of declaration date for such issuancedistribution, the applicable Conversion Rate will be adjusted based on the following formula formula: CR = CR0 × (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +OS0 + X) divided by (OS O +OS0 + Y) where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the date fixed for the determination of shareholders entitled to receive such event rights, options, warrants or other securities (such date, the “Rights Distribution Record Date”); CR l = the applicable Conversion Rate in effect immediately after such event OS O the open of business on the Business Day immediately following the Rights Distribution Record Date; OS0 = the number of shares of Voting Common Stock Ordinary Shares outstanding immediately prior to such event the open of business on the Rights Distribution Record Date; X = the total number of shares of Voting Common Stock Ordinary Shares issuable pursuant to such rights. warrants, options, warrants or other securities or convertible securities securities; and Y = the quotient number of (A) Ordinary Shares equal to the aggregate price payable to exercise such rights, warrants, options, warrants or other securities or convertible securities and (B) divided by the average of the Closing Last Reported Sale Prices of the Voting Common Stock for Ordinary Shares over the 20 10 consecutive Trading Days Day period ending two on the Trading Days prior to Day immediately preceding the date of announcement of the distribution of such rights, options, warrants or other securities. If such rights, options, warrants or other securities are not so issued, the Conversion Rate will remain the Conversion Rate that would then be in effect if a Rights Distribution Record Date for such distribution had not been fixed. In addition, to the extent that Ordinary Shares are not delivered after the expiration of such rights, options, warrants or other securities, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, warrants, options, warrants or other securities or convertible securities An adjustment been made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date basis of announcement delivery of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon only the number of additional shares of Voting Common Stock Ordinary Shares actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)delivered. For purposes of this Section 9(a)(iiclause (ii), in determining whether such any rights, warrants, options, warrants or other securities or convertible securities entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Ordinary Shares at less than the average Closing Sale Price of the Voting Common Stock, and Last Reported Sale Prices of Ordinary Shares for each Trading Day in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stockapplicable 10 consecutive Trading Day Period, there shall be taken into account any consideration received by the Corporation Issuer receives for such rights, warrants, options, warrants or other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by the Issuer’s Board of Directors.
(iii) If the Corporation Issuer distributes shares of the Corporation’s its Capital Stock, evidences of the Corporation’s indebtedness or its Indebtedness, other assets or property of the Corporation or any of rights or warrants to acquire its Subsidiaries Capital Stock or other securities, to all or substantially all of the holders of the Corporation’s Voting Common StockOrdinary Shares, excluding:
(1A) dividends, dividends or distributions and rights, warrants, options, warrants and other securities described in clause (i) or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); ) above or clause (2v) below;
(B) dividends or distributions paid exclusively in cash, including as described in clause (iv) below;
(C) dividends or distributions effected pursuant to a reclassification, merger, sale, conveyance or other transaction described in Section 12.06, where such dividend or distribution becomes Reference Property as described in Section 12.06; and and
(3D) Spin-Offs described to which the provisions set forth below in this Section 9(a)(iiiclause (iii) below, shall apply; then the applicable Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by CR0 × ▇▇▇ (SP O -FMV▇▇▇ - FMV) where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such distribution distribution; CR 1 = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such distribution SP O record date; SP0 = the average of the Closing Last Reported Sale Prices of Ordinary Shares over the Voting Common Stock for the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Issuer’s Board of DirectorsDirectors or a committee thereof) of the shares of Capital Stock, evidences of indebtednessIndebtedness, assets assets, property, rights or property warrants distributed with respect to each outstanding share Ordinary Share as of Voting Common Stock the open of business on the Ex-Dividend Date for such distribution; provided that if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision will be made so that each Holder shall receive on the date on which the distributed property is distributed to holders of Ordinary Shares, for each U.S.$1,000 principal amount of Notes, the amount of distributed property such Holder would have received had such Holder owned a number of Ordinary Shares that it would have been entitled to receive based on the Conversion Rate on the record date for such distribution An distribution; provided further that if the Issuer’s Board of Directors determines “FMV” for purposes of the foregoing adjustment made pursuant by reference to the above paragraph shall be made successively whenever trading market for any securities, it must in doing so consider the prices in such distribution is made and shall become effective market over the same period used in computing the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the day Trading Day immediately after preceding the dated fixed Ex-Dividend Date for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 9(a)(iiiclause (iii) where there has been a payment of a dividend or other distribution on the Voting Common Stock Ordinary Shares or shares of capital stock Capital Stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased adjusted based on the following formula: CR 1= CR O times = CR0 × (FMV O +MP O+ MP0) divided by MP O MP0 where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to such distribution the opening of business on the Business Day immediately following the record date for the Spin-Off; CR 1 = the applicable Conversion Rate in effect immediately after the opening of business on the Business Day immediately following such distribution record date; FMV O = the average of the Closing Last Reported Sale Prices of the capital stock Capital Stock or similar equity interest distributed to holders of Voting Common Stock Ordinary Shares applicable to one share of Voting Common Stock Ordinary Share over the first 20 10 consecutive Trading Day period immediately following, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Ordinary Shares over the Valuation Period. The adjustment to the applicable Conversion Rate under the preceding paragraph of this clause (iii) will be made immediately after the open of business on the day after the last day of the Valuation Period, but will be given effect as of the open of business on the Business Day immediately following the record date for the Spin-Off. For purposes of determining the applicable Conversion Rate in respect of any conversion during the Valuation Period, references within the portion of this clause (iii) related to Spin-Offs to 10 Trading Days after shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Ex-Dividend Date of such Spin-Off MP O to, but excluding, the Conversion Date. If any distribution or spin-off described in this clause (iii) results in an adjustment to the Conversion Rate but such distribution or Spin-Off is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution or Spin-Off had not been declared.
(iv) If the Issuer makes or pays any cash dividend or any other cash distribution to all, or substantially all, holders of the outstanding Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ - C) where, CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such dividend or distribution; CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such record date; SP0 = the average of the Closing Last Reported Sale Prices of the Voting Common Stock Ordinary Shares over the first 20 10 consecutive Trading Days after Day period ending on, and including, the effective date Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share the Issuer distributes to holders of the Ordinary Shares. If such Spin-Off The dividend or distribution results in an adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day from, and including, the effective date of such Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ivv) If (A) the Corporation makes any cash dividend Issuer or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Corporation’s quarterly fiscal periods Ordinary Shares, and (B) the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to all such tender or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share exchange offer (the “Base DividendExpiration Date”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock), the applicable Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by CR0 × AC + (SP O –Cx OS) (SP x OS0) where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to the record date for such distribution open of business on the Business Day next succeeding the Expiration Date; CR 1 = the applicable Conversion Rate in effect immediately after the record date open of business on the Business Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Issuer’s Board of Directors or a committee thereof) paid or payable for Ordinary Shares purchased in such distribution tender or exchange offer; OS0 = the number of Ordinary Shares outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer); OS = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to such tender or exchange offer); and SP O = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for Ordinary Shares over the 20 10 consecutive Trading Days ending two Day period commencing on, and including, the Trading Days prior Day next succeeding the Expiration Date. The adjustment to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate under this clause (v) will be made at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the open of business on the Business Day following the Expiration Date. For purposes of determining the applicable Conversion Rate in respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to 10 Trading Days shall again be adjusted deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding the Conversion Date. If the Issuer or one of its Subsidiaries is obligated to purchase the Ordinary Shares pursuant to any such tender or exchange offer but the Issuer or the relevant Subsidiary is permanently prevented by applicable law from effecting any such purchase or all or any portion of such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange offer had not been declared. No made or had only been made in respect of the purchases that had been effected.
(vi) Notwithstanding the foregoing, if any calculation required to be made in determining the adjustment to the Conversion Rate pursuant to under this Section 9(a)(iv12.05(a) shall cannot be mademade at such time because the facts required for such determination cannot be ascertained, if the Corporation distributesIssuer will make such determination as soon as practicable upon such information becoming determinate, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any and such adjustment will be effected made with retroactive effect to the first such date where the adjustment is required to be made.
(vii) To the extent that any event would give rise to an adjustment to be made under more than one of the clauses set forth above, or holders of the Issuer’s Ordinary Shares have the right to elect between distributions that would be covered by multiplying the Base Dividend by a fractionmore than one of such clauses, the numerator of which will equal OS O and the denominator of which will equal OS 1Issuer shall, in each casegood faith, within determine the meaning adjustment to be made, including, if applicable, the order of Section 9(a)(i).th
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment to the Conversion Rate if Holders may participate, as a result of holding the Securities, in the transaction described below without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or makes a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effectedcombines its Common Shares, then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date of such event CR 1 dividend or distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after such event OS O Ex-Dividend Date or effective date, as applicable OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 Ex-Dividend Date or effective date, as applicable OS' = the number of shares of Voting Common Stock Shares outstanding immediately prior to such Ex-Dividend Date or effective date, as applicable, after giving pro forma effect to such event An dividend, distribution, subdivision or combination Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after 9:00 a.m., New York City time, on the date immediately after (x) Business Day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend Common Share subdivision or other distribution or (y) the date on which such split or combination becomes effective, as applicablecombination. If any dividend or distribution of the type described in this Section 9(a)(i13.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation issues Company, at any time or from time to time while any of the Securities are outstanding, distributes to holders of all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for warrants to purchase Common Shares at a period of not more than 20 days after the date of issuance thereof to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share Common Share less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date of such event CR l distribution CR' = the Conversion Rate in effect immediately after such event OS O Ex-Dividend Date OS0 = the number of shares Common Shares outstanding at the open of Voting Common Stock outstanding immediately prior to business on the next Business Day following such event Ex-Dividend Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities rights or convertible securities warrants Y = the number of Common Shares equal to the quotient of (Aa) the aggregate price payable to exercise all such rights, warrants, options, other securities rights or convertible securities warrants and (Bb) the average of the Closing Sale Prices Price of the Voting Common Stock Shares for the 20 10 consecutive Trading Days ending two on the Trading Days prior to Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities rights or convertible securities An warrants Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after 9:00 a.m., New York City time, on the day Business Day following the date of announcement of the issuance of such issuancerights or warrants. If, at To the end of the period during which extent that Common Shares are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares Common Shares actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of Voting Common Stock actually issued (shareholders entitled to receive such rights or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 13.04(c), rights or warrants distributed by the Company to all holders of the Common Shares entitling them to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such Common Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.04(c) (and no adjustment to the Conversion Price under this Section 13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.04(c) was made, (A) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (B) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares to holders of all or substantially of the Corporation’s Capital StockCommon Shares, Common Shares, evidences of the Corporation’s indebtedness or other assets or property of the Corporation property, including securities, but excluding:
(i) dividends or any of its Subsidiaries to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: (1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) Section 13.04(a);
(ii) rights or warrants referred to in Section 13.04(c); and
(2iii) dividends or distributions paid exclusively in cash; and (3) Spin-Offs described in this Section 9(a)(iii) below, then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution CR 1 CR' = the Conversion Rate in effect immediately after such distribution SP O Ex-Dividend Date SP0 = the average Current Market Price of the Closing Sale Prices of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for Day immediately preceding such distribution Ex-Dividend Date FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to 9:00 a.m., New York City time, on the day immediately after Business Day following the dated fixed Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive the rights under the rights plan attached to the Common Shares unless such rights are in respect of Ineligible Consideration or such rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets or property as described in this Section 13.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. For greater certainty, any rights under the rights plan received by a Holder on conversion of the Securities will be received by the Holder by reason of the Holder becoming an owner of Common Shares and not as consideration for the determination conversion of stockholders entitled to receive such distributionthe Securities. With respect to an adjustment pursuant to this Section 9(a)(iii13.04(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “"Spin-Off”"), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will the Spin-Off shall be increased based on the following formulaformula in lieu of the formula above: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after such distribution FMV O the effective date of the Spin-Off FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one share of Voting Common Stock Share over the first 20 Trading Days after 10 consecutive Trading-Day period commencing on, and including, the effective date of such the Spin-Off MP O MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 10 consecutive Trading Days after Trading-Day period commencing on, and including, the effective date of such the Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th 10th Trading Day from, and including, the effective date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the settlement date would occur during the 10 Trading Days from, and including, the effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the settlement date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior the effective date of the Spin-Off with respect to which the settlement date would occur during the three Trading Days from, and including, the effective date of such Spin-Off. Notwithstanding anything , references to the contrary herein10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the Conversion Price shall not be reduced by more than $0.81 as a result effective date of the Spin-Off of the Crimson Wine Group. Off.
(d) If any cash dividend or other distribution is paid to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution described CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the Trading Day immediately preceding such Ex-Dividend Date C = the amount in cash per share the Company distributes to holders of Common Shares
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer (as such terms are defined under applicable U.S. securities laws) for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Closing Sale Price of the Common Shares on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the effective date of the adjustment CR' = the Conversion Rate in effect immediately after the effective date of the adjustment AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares accepted for purchase or exchange in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer expires (prior to giving effect to such tender or exchange offer) OS' = the number of Common Shares outstanding less any Common Shares accepted for purchase or exchange in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of the Common Shares on the Trading Day next succeeding the date such tender or exchange offer expires The adjustment to the Conversion Rate under this Section 9(a)(iii13.04(e) shall occur on the 10th Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the settlement date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the settlement date in determining the applicable Conversion Rate. If the Company is declared obligated to repurchase shares pursuant to any such tender or exchange offer, but not paid the Company is permanently prevented by applicable law from effecting any such purchases or madeall such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declaredmade.
(ivf) If the Corporation makes any cash dividend or distribution during any For purposes of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)this Section 13.04, the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O = the Conversion Rate in effect immediately prior to the record date for such distribution CR 1 = the Conversion Rate in effect immediately after the record date for such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) terms shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within have the meaning of Section 9(a)(i).indicated:
Appears in 1 contract
Sources: Indenture (Jaguar Mining Inc)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares The Conversion Rate shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by time, without duplication, upon the Corporation in accordance with the provisions occurrence of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as any of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as followsfollowing events:
(ia) If the Corporation Company issues solely shares of Voting Common Stock as a dividend or distribution on all or substantially all of its shares of Voting Common Stock, or if a share split the Company subdivides or share combination is effectedcombines Common Stock, the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times CR0 × OS 1 divided by OS O OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0` = the number of shares of Voting Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; and OS 1 = the number of shares of Voting Common Stock that would be outstanding immediately after giving effect to such event An dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be. Any adjustment made pursuant to under this Section 9(a)(i5.05(a) shall become effective immediately after the Close of Business on the date immediately after (x) the date fixed Record Date for the determination of stockholders entitled to receive such dividend or other distribution distribution, or (y) immediately after the Open of Business on the effective date on which of such split subdivision or combination becomes effectiveof Common Stock, as applicablethe case may be. If any dividend such dividend, distribution, subdivision or distribution combination described in this Section 9(a)(i5.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declareddeclared or subdivision or combination had not been announced.
(iib) If the Corporation issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Voting Common Stock of any rights, warrants, options or other securities warrants entitling them such holders for a period of not more than 20 60 calendar days after from the announcement date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the average of the Closing Sale Price of shares Prices of the Voting Common Stock on for the business day 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of date for such issuancedistribution, the Conversion Rate will shall be adjusted increased based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: CR 1 = CR O times (OS O +X) divided by (OS O +Y) CR0 × OS0 + X OS0 + Y where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event distribution; CR l = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O distribution; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event distribution; X = the total number of shares of Voting Common Stock issuable pursuant to such rights. , options or warrants, options, other securities or convertible securities ; and Y = the quotient number of (A) shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any increase made under this Section 5.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the exercise of such rights, options or warrants, optionsthe Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, other securities options or convertible securities and (B) warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if the Record Date for such distribution had not occurred. For purposes of this Section 5.05(b), in determining whether any rights, options or warrants entitle the Holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Voting Common Stock for over the 20 applicable 10 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common StockDay period, there shall be taken into account any consideration received by the Corporation Company receives for such rights, warrants, options, other securities options or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined in good faith by the Board of Directors.
(iiiA) If the Corporation distributes an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the CorporationCompany’s Capital Stockcapital stock, evidences of the CorporationCompany’s indebtedness or other assets or property of the Corporation Company or any of its Subsidiaries rights, options or warrants to acquire the Company’s capital stock or other securities, to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: Stock (1excluding (i) dividends, dividends or distributions and rights, warrants, options, other securities options or convertible securities referred warrants as to in Sections 9(a)(i)or 9(awhich an adjustment was effected under Section 5.05(a) or Section 5.05(b) above; (ii); (2) dividends or distributions paid exclusively in cashcash covered under Section 5.05(d); and (3iii) Spin-Offs described in this Section 9(a)(iii) belowOffs), then the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) CR0 × ▇▇▇ ▇▇▇ – FMV where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Voting Common Stock as of the Open of Business on the record date Ex-Dividend Date for such distribution An distribution. Any increase made under the above portion of this Section 5.05(c) shall become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment made pursuant to the above paragraph formula will result in a decrease of the Conversion Rate. However, if such distribution is not so paid or made, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to convert its Notes, the amount and kind of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For purposes of this Section 5.05(c)(A) (and subject in all respects to Section 5.05(f)):
(1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”):
(i) are deemed to be transferred with such shares of the Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 5.05(c) (and no adjustment to the Conversion Rate under this Section 5.05(c) shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made successively whenever under this Section 5.05(c).
(2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).
(3) In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (2) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 5.05(c) was made:
(i) in the case of any such rights, options or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 5.05(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and
(ii) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
(4) For purposes of Section 5.05(a), Section 5.05(b) and this Section 5.05(c), if any dividend or distribution to which this Section 5.05(c) is made applicable includes one or both of:
(i) a dividend or distribution of shares of Common Stock to which Section 5.05(a) is applicable (the “Clause A Distribution”); or
(ii) an issuance of rights, options or warrants to which Section 5.05(b) is applicable (the “Clause B Distribution”), then:
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall become effective be deemed to be a dividend or distribution to which this Section 5.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 5.05(c) with respect to such Clause C Distribution shall then be made; and
(2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 5.05(a) and Section 5.05(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Record Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Record Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the Close of Business on the day Record Date or immediately after prior to the dated fixed for Open of Business on such effective date” within the determination meaning of stockholders entitled Section 5.05(a) or “outstanding immediately prior to receive such distribution. the Close of Business on the Record Date” within the meaning of Section 5.05(b).
(B) With respect to an adjustment pursuant to this Section 9(a)(iii5.05(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Voting Common Stock or of shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices unit, that are, or, when issued, will be, listed or admitted for the first 20 Trading Days after the payment of such dividend or distribution shall have been made trading on a U.S. national securities exchange (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will shall be increased based on the following formula: CR 1= CR O times (= CR0 × FMV O +MP O) divided by MP O + MP0 MP0 where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution the Close of Business on the Record Date for the Spin-Off; CR 1 = the Conversion Rate in effect immediately after such distribution the Close of Business on the Record Date for the Spin-Off; FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 20 10 consecutive Trading Days after Day period commencing on, and including, the effective date of such for the Spin-Off MP O (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph will occur of this Section 5.05(c) shall be determined on the 20th last day of the Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 5.05(c)(B) related to 10 Trading Day Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of for such Spin-Off. Notwithstanding anything to the contrary hereinOff to, but excluding, the relevant Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredDate.
(ivd) If the Corporation makes any an Ex-Dividend Date occurs for a cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting the Common StockStock (other than (i) any dividend or distribution in connection with the Company’s liquidation, in an aggregate amount that, together with other dissolution or winding up and (ii) a regular cash dividends or distributions made during such quarterly fiscal period, exceeds dividend that does not exceed $0.0625 0.03 per share per quarter (the “Base DividendDividend Threshold Amount”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)), the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) CR0 × SP0 – T SP0 – C where, CR O CR0 = the Conversion Rate in effect immediately prior to the record date Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the record date Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date of Ex-Dividend Date for such distribution C distribution; T = the amount in cash per share Dividend Threshold Amount; provided that if the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madea regular quarterly cash dividend, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment Threshold Amount will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).deemed to be zero; and
Appears in 1 contract
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i(a) as a result of a share split or share combination. The applicable Conversion Rate shall be adjusted from time to time by the Corporation Issuer as follows:, except that the Issuer will not make any adjustments to the Conversion Rate if Holders participate (as a result of holding Notes and at the same time as ADS holders participate) in any of the transactions described below as if such Holders held a number of ADSs equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders without having to convert their Notes. A Holder will be deemed to have so participated if the transaction results in an issuance of securities or a distribution of other property that are held by the ADS depositary or the CPO trustee (to the extent required to be later distributed by the CPO trustee to the ADS depository for the benefit of such Holders of the Notes) at the time of conversion of such Notes into ADSs.
(i) If the Corporation Issuer issues shares of Voting Common Stock solely Ordinary Shares as a dividend or any other distribution (including by recapitalization of retained earnings) on shares of Voting Common Stockall or substantially all Ordinary Shares, or if the Issuer effects a share split or share combination is effectedof its Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times CR0 × OS 1 divided by OS O OS0 where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to such event CR 1 = the Conversion Rate in effect immediately after such event OS O = the number open of shares of Voting Common Stock outstanding immediately prior to such event OS 1 = the number of shares of Voting Common Stock outstanding immediately after such event An adjustment made pursuant to this Section 9(a)(i) shall become effective business on the date Business Day immediately after following (x) the date fixed for the determination of stockholders holders of Ordinary Shares entitled to receive such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicableapplicable (such date specified in clause (x) or (y), the “Dividend Record Date”); CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Dividend Record Date; OS0 = the number of Ordinary Shares outstanding immediately prior to the open of business on the Dividend Record Date; and OS = the number of Ordinary Shares that would have been outstanding immediately prior to the open of business on the Dividend Record Date as adjusted to take into account such dividend, distribution, split or combination. If any dividend or distribution of the type described in this Section 9(a)(iclause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or the outstanding Ordinary Shares are not split or combined, as the case may be, the Conversion Rate shall again be adjusted immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the Issuer’s shareholders’ meeting or Board of Directors determines not to pay such dividend or distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to have been paid, or (in the case of a stock split or combination) the date on which such split or combination was to have been effective, to the Conversion Rate that would then be in effect if such dividend dividend, distribution, share split or distribution share combination had not been declareddeclared or announced.
(ii) If the Corporation issues Issuer distributes to all or substantially all holders of Voting Common Stock Ordinary Shares any rights, warrantsoptions, options warrants or other securities entitling them for a period of not more than 20 45 calendar days after from the record date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Common Stock, Ordinary Shares (or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereofOrdinary Shares), in either case at an exercise a price per share Ordinary Share (or a conversion price per share Ordinary Share) less than the Closing Sale Price of shares average of the Voting Common Stock on Last Reported Sale Prices of the business day Ordinary Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of declaration date for such issuancedistribution, the applicable Conversion Rate will be adjusted based on the following formula formula: CR = CR0 × (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +OS0 + X) divided by (OS O +OS0 + Y) where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the date fixed for the determination of shareholders entitled to receive such event rights, options, warrants or other securities (such date, the “Rights Distribution Record Date”); CR l = the applicable Conversion Rate in effect immediately after such event OS O the open of business on the Business Day immediately following the Rights Distribution Record Date; OS0 = the number of shares of Voting Common Stock Ordinary Shares outstanding immediately prior to such event the open of business on the Rights Distribution Record Date; X = the total number of shares of Voting Common Stock Ordinary Shares issuable pursuant to such rights. warrants, options, warrants or other securities or convertible securities securities; and Y = the quotient number of (A) Ordinary Shares equal to the aggregate price payable to exercise such rights, warrants, options, warrants or other securities or convertible securities and (B) divided by the average of the Closing Last Reported Sale Prices of the Voting Common Stock for Ordinary Shares over the 20 10 consecutive Trading Days Day period ending two on the Trading Days prior to Day immediately preceding the date of announcement of the distribution of such rights, options, warrants or other securities. If such rights, options, warrants or other securities are not so issued, the Conversion Rate will remain the Conversion Rate that would then be in effect if a Rights Distribution Record Date for such distribution had not been fixed. In addition, to the extent that Ordinary Shares are not delivered after the expiration of such rights, options, warrants or other securities, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, warrants, options, warrants or other securities or convertible securities An adjustment been made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date basis of announcement delivery of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon only the number of additional shares of Voting Common Stock Ordinary Shares actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)delivered. For purposes of this Section 9(a)(iiclause (ii), in determining whether such any rights, warrants, options, warrants or other securities or convertible securities entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Ordinary Shares at less than the average Closing Sale Price of the Voting Common Stock, and Last Reported Sale Prices of Ordinary Shares for each Trading Day in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stockapplicable 10 consecutive Trading Day Period, there shall be taken into account any consideration received by the Corporation Issuer receives for such rights, warrants, options, warrants or other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by the Issuer’s Board of Directors.
(iii) If the Corporation Issuer distributes shares of the Corporation’s its Capital Stock, evidences of the Corporation’s indebtedness or its Indebtedness, other assets or property of the Corporation or any of rights or warrants to acquire its Subsidiaries Capital Stock or other securities, to all or substantially all of the holders of the Corporation’s Voting Common StockOrdinary Shares, excluding:
(1A) dividends, dividends or distributions and rights, warrants, options, warrants and other securities described in clause (i) or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); ) above or clause (2v) below;
(B) dividends or distributions paid exclusively in cash, including as described in clause (iv) below;
(C) dividends or distributions effected pursuant to a reclassification, merger, sale, conveyance or other transaction described in Section 12.06, where such dividend or distribution becomes Reference Property as described in Section 12.06; and and
(3D) Spin-Offs described to which the provisions set forth below in this Section 9(a)(iiiclause (iii) below, shall apply; then the applicable Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by CR0 × ▇▇▇ (SP O -FMV▇▇▇ - FMV) where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such distribution distribution; CR 1 = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such distribution SP O = record date; SP0= the average of the Closing Last Reported Sale Prices of Ordinary Shares over the Voting Common Stock for the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Issuer’s Board of DirectorsDirectors or a committee thereof) of the shares of Capital Stock, evidences of indebtednessIndebtedness, assets assets, property, rights or property warrants distributed with respect to each outstanding share Ordinary Share as of Voting Common Stock the open of business on the Ex-Dividend Date for such distribution; provided that if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision will be made so that each Holder shall receive on the date on which the distributed property is distributed to holders of Ordinary Shares, for each U.S.$1,000 principal amount of Notes, the amount of distributed property such Holder would have received had such Holder owned a number of Ordinary Shares that it would have been entitled to receive based on the Conversion Rate on the record date for such distribution An distribution; provided further that if the Issuer’s Board of Directors determines “FMV” for purposes of the foregoing adjustment made pursuant by reference to the above paragraph shall be made successively whenever trading market for any securities, it must in doing so consider the prices in such distribution is made and shall become effective market over the same period used in computing the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the day Trading Day immediately after preceding the dated fixed Ex-Dividend Date for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 9(a)(iiiclause (iii) where there has been a payment of a dividend or other distribution on the Voting Common Stock Ordinary Shares or shares of capital stock Capital Stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased adjusted based on the following formula: CR 1= CR O times = CR0 × (FMV O +MP O+ MP0) divided by MP O MP0 where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to such distribution the opening of business on the Business Day immediately following the record date for the Spin-Off; CR 1 = the applicable Conversion Rate in effect immediately after the opening of business on the Business Day immediately following such distribution record date; FMV O = the average of the Closing Last Reported Sale Prices of the capital stock Capital Stock or similar equity interest distributed to holders of Voting Common Stock Ordinary Shares applicable to one share of Voting Common Stock Ordinary Share over the first 20 10 consecutive Trading Day period immediately following, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Ordinary Shares over the Valuation Period. The adjustment to the applicable Conversion Rate under the preceding paragraph of this clause (iii) will be made immediately after the open of business on the day after the last day of the Valuation Period, but will be given effect as of the open of business on the Business Day immediately following the record date for the Spin-Off. For purposes of determining the applicable Conversion Rate in respect of any conversion during the Valuation Period, references within the portion of this clause (iii) related to Spin-Offs to 10 Trading Days after shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Ex-Dividend Date of such Spin-Off MP O to, but excluding, the Conversion Date. If any distribution or spin-off described in this clause (iii) results in an adjustment to the Conversion Rate but such distribution or Spin-Off is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution or Spin-Off had not been declared.
(iv) If the Issuer makes or pays any cash dividend or any other cash distribution to all, or substantially all, holders of the outstanding Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ - C) where, CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such dividend or distribution; CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such record date; SP0 = the average of the Closing Last Reported Sale Prices of the Voting Common Stock Ordinary Shares over the first 20 10 consecutive Trading Days after Day period ending on, and including, the effective date Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share the Issuer distributes to holders of the Ordinary Shares. If such Spin-Off The dividend or distribution results in an adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day from, and including, the effective date of such Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ivv) If (A) the Corporation makes any cash dividend Issuer or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Corporation’s quarterly fiscal periods Ordinary Shares, and (B) the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to all such tender or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share exchange offer (the “Base DividendExpiration Date”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock), the applicable Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by CR0 × AC + (SP O –Cx OS) (SP x OS0) where, CR O CR0 = the applicable Conversion Rate in effect immediately prior to the record date for such distribution open of business on the Business Day next succeeding the Expiration Date; CR 1 = the applicable Conversion Rate in effect immediately after the record date open of business on the Business Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Issuer’s Board of Directors or a committee thereof) paid or payable for Ordinary Shares purchased in such distribution tender or exchange offer; OS0 = the number of Ordinary Shares outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer); OS = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to such tender or exchange offer); and SP O = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for Ordinary Shares over the 20 10 consecutive Trading Days ending two Day period commencing on, and including, the Trading Days prior Day next succeeding the Expiration Date. The adjustment to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate under this clause (v) will be made at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the open of business on the Business Day following the Expiration Date. For purposes of determining the applicable Conversion Rate in respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to 10 Trading Days shall again be adjusted deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding the Conversion Date. If the Issuer or one of its Subsidiaries is obligated to purchase the Ordinary Shares pursuant to any such tender or exchange offer but the Issuer or the relevant Subsidiary is permanently prevented by applicable law from effecting any such purchase or all or any portion of such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange offer had not been declared. No made or had only been made in respect of the purchases that had been effected.
(vi) Notwithstanding the foregoing, if any calculation required to be made in determining the adjustment to the Conversion Rate pursuant to under this Section 9(a)(iv12.05(a) shall cannot be mademade at such time because the facts required for such determination cannot be ascertained, if the Corporation distributesIssuer will make such determination as soon as practicable upon such information becoming determinate, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any and such adjustment will be effected made with retroactive effect to the first such date where the adjustment is required to be made.
(vii) To the extent that any event would give rise to an adjustment to be made under more than one of the clauses set forth above, or holders of the Issuer’s Ordinary Shares have the right to elect between distributions that would be covered by multiplying the Base Dividend by a fractionmore than one of such clauses, the numerator of which will equal OS O and the denominator of which will equal OS 1Issuer shall, in each casegood faith, within determine the meaning adjustment to be made, including, if applicable, the order of Section 9(a)(i).the
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or make a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effected, combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR 1 CR’ = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 OS’ = the number of shares of Voting Common Stock Shares outstanding immediately after such event An Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after the opening of business on the date immediately after (x) day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend or other distribution or (y) the date on which such share split or combination becomes effective, as applicableshare combination. If any dividend or distribution of the type described in this Section 9(a)(i13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for a period of not more than 20 days after the date of issuance thereof warrants to subscribe for or purchase shares of the Voting Common Stock, Shares (or securities convertible into shares of Voting or exchangeable or exercisable for Common Stock within 20 days after the issuance thereofShares) at a price per share (or having a conversion, in either case at an exchange or exercise price per share or a conversion price per share share) less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR l CR’ = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares Common Shares outstanding on the close of Voting Common Stock outstanding immediately prior to business on the next Business Day following such event Record Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities or convertible securities rights Y = the quotient number of (A) Common Shares equal to the aggregate offering price payable to exercise that the total number of shares so offered would purchase at such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices Price of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance Record Date of such rights, warrants, options, other securities issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or convertible securities An warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. If, at To the end of the period during which extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares of Voting Common Stock actually issued Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the number event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b) . If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all holders of its Common Shares, Common Shares of the holders Company, evidences of the Corporation’s Voting Common Stockits indebtedness or assets, including securities, but excluding: :
(1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2i) dividends or distributions paid exclusively referred to in cashSection 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and and
(3iii) Spin-Offs described dividends or distributions referred to in this Section 9(a)(iii) below, 13.4(d); then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR’ = the Conversion Rate in effect immediately after such distribution SP O SP0 = the average Current Market Price of Common Shares on the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date Record Date for such distribution FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to the opening of business on the day immediately after following the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 9(a)(iii13.4(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock shareholders entitled to receive such payment of such dividend or the distribution will shall be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR’ = the Conversion Rate in effect immediately after such distribution FMV O FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one common share of Voting Common Stock over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off MP O distribution on NYSE or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 10 consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off distribution on The NYSE or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th fourteenth Trading Day from, and including, after the effective date on which “Ex-Dividend Trading” commences for such distribution on NYSE or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of such Spin-Off. Notwithstanding anything to the contrary hereinCommon Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR’ = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price shall not be reduced by more than $0.81 as a result of one of the Spin-Off Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Crimson Wine Group. If any Record Date for such dividend or distribution; provided that if such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to the Corporation’s quarterly fiscal periods to all extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)exchange offer is announced, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to on the record date for such distribution CR 1 tender or exchange offer expires CR’ = the Conversion Rate in effect immediately after on the record day next succeeding the date for such distribution SP O tender or exchange offer expires AC = the average fair market value (as determined by the Board of Directors) of the Closing Sale Prices of the Voting Common Stock aggregate consideration paid or payable for the 20 consecutive Trading Days ending two Trading Days prior to the record date of shares purchased in such distribution C tender or exchange offer OS0 = the amount number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS’ = the number of Common Shares outstanding less any shares purchased in cash per share the Corporation distributes tender or exchange offer at the time such tender or exchange offer expires SP’ = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made repurchase shares pursuant to this Section 9(a)(iv) shall become effective on any such tender or exchange offer, but the date immediately after the Record Date for the determination of stockholders entitled to receive Company is permanently prevented by applicable law from effecting any such dividend purchases or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madeall such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declared. No adjustment to the Conversion Rate pursuant to made.
(f) For purposes of this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction13.4, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within following terms shall have the meaning of Section 9(a)(i).indicated:
Appears in 1 contract
Sources: Indenture (Endeavour Silver Corp)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or make a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effected, combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR 1 CR’ = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 OS’ = the number of shares of Voting Common Stock Shares outstanding immediately after such event An Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after the opening of business on the date immediately after (x) day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend or other distribution or (y) the date on which such share split or combination becomes effective, as applicableshare combination. If any dividend or distribution of the type described in this Section 9(a)(i16.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for a period of not more than 20 days after the date of issuance thereof warrants to subscribe for or purchase shares of the Voting Common Stock, Shares (or securities convertible into shares of Voting or exchangeable or exercisable for Common Stock within 20 days after the issuance thereofShares) at a price per share (or having a conversion, in either case at an exchange or exercise price per share or a conversion price per share share) less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR l CR’ = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares Common Shares outstanding on the close of Voting Common Stock outstanding immediately prior to business on the next Business Day following such event Record Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities or convertible securities rights Y = the quotient number of (A) Common Shares equal to the aggregate offering price payable to exercise that the total number of shares so offered would purchase at such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices Price of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance Record Date of such rights, warrants, options, other securities issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or convertible securities An warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. If, at To the end of the period during which extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares of Voting Common Stock actually issued Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the number event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 16.04(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 16.04(b) (and no adjustment to the Conversion Price under this Section 16.04(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 16.04(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 16.04(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all holders of its Common Shares, Common Shares of the holders Company, evidences of the Corporation’s Voting Common Stockits indebtedness or assets, including securities, but excluding: :
(1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2i) dividends or distributions paid exclusively referred to in cashSection 16.04(a);
(ii) rights or warrants referred to in Section 16.04(b); and and
(3iii) Spin-Offs described dividends or distributions referred to in this Section 9(a)(iii) below, 16.04(d); then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR’ = the Conversion Rate in effect immediately after such distribution SP O SP0 = the average Current Market Price of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date Shares on such Record Date for such distribution FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to the opening of business on the day immediately after following the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 16.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 9(a)(iii16.04(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock shareholders entitled to receive such payment of such dividend or the distribution will shall be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR’ = the Conversion Rate in effect immediately after such distribution FMV O FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one common share of Voting Common Stock over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off MP O distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th fourteenth Trading Day from, and including, after the effective date on which “Ex-Dividend Trading” commences for such distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of such Spin-Off. Notwithstanding anything to the contrary hereinCommon Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR’ = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price shall not be reduced by more than $0.81 as a result of one of the Spin-Off Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Crimson Wine Group. If any Record Date for such dividend or distribution; provided that if such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to the Corporation’s quarterly fiscal periods extent that the cash and value of any other consideration included in the payment per Common Share exceeds the last reported sale price per Common Share on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to all such tender offer or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)exchange offer, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to on the record date for such distribution CR 1 tender or exchange offer expires CR’ = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately after preceding the record date for such distribution SP O tender or exchange offer is announced OS’ = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP’ = the average of the Closing Sale Prices last reported sale prices of the Voting Common Stock for Shares over the 20 ten consecutive trading day period commencing on the Trading Days ending two Trading Days prior Day next succeeding the date such tender or exchange offer expires. The adjustment to the record conversion rate under the preceding paragraph will occur on the tenth Trading Day next succeeding the date of such distribution C = tender or exchange offer expires. If the amount in cash per share the Corporation distributes Company is obligated to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made repurchase shares pursuant to this Section 9(a)(iv) shall become effective on any such tender or exchange offer, but the date immediately after the Record Date for the determination of stockholders entitled to receive Company is permanently prevented by applicable law from effecting any such dividend purchases or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madeall such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declared. No adjustment to the Conversion Rate pursuant to made.
(f) For purposes of this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction16.04, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within following terms shall have the meaning of Section 9(a)(i).indicated:
Appears in 1 contract
Sources: Indenture (Gold Reserve Inc)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall The Conversion Rate will be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment adjustments from time to time by time, without duplication, upon the Corporation in accordance with the provisions occurrence of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as any of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as followsfollowing events:
(ia) If the Corporation Company (i) issues solely shares of Voting Company Common Stock as a dividend or distribution on its shares of Voting Company Common Stock, (ii) subdivides Company Common Stock or if a share split or share combination is effected(iii) combines Company Common Stock, the Conversion Rate will be adjusted calculated based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Company Common Stock, as the case may be; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Company Common Stock, as the case may be; OS0 = the number of shares of Voting Company Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Company Common Stock, as the case may be; and OS 1 = the number of shares of Voting Company Common Stock that would be outstanding immediately after such event An adjustment made pursuant giving effect to this Section 9(a)(i) shall become effective on the date immediately after (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution distribution, or (y) immediately after the effective date on which of such split subdivision or combination becomes effectiveof Company Common Stock, as applicablethe case may be. Any adjustment made under this Section 10.4(a) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Company Common Stock, as the case may be. If any dividend such dividend, distribution, subdivision or distribution combination described in this Section 9(a)(i10.4(a) is declared but not so paid or made, the Conversion Rate shall again will be adjusted immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declareddeclared or such subdivision or combination had not been announced.
(iib) If the Corporation issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Voting Company Common Stock of any rights, warrants, options or other securities warrants entitling them such holders for a period of not more than 20 sixty (60) calendar days after from the announcement date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Company Common Stock, Stock (or securities convertible into shares of Voting Company Common Stock within 20 days after the issuance thereofStock), in either case at an exercise price per share or a conversion price per share less than the average of the Closing Sale Price of shares Prices of the Voting Class A Common Stock on for the business day ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of date for such issuancedistribution, the Conversion Rate will be adjusted calculated based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) formula: where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event distribution; CR l = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event OS O distribution; OS0 = the number of shares of Voting Company Common Stock outstanding immediately prior to the Close of Business on the Record Date for such event distribution; X = the total number of shares of Voting Company Common Stock issuable pursuant to such rights. , options or warrants, options, other securities or convertible securities ; and Y = the quotient number of (A) shares of Company Common Stock equal to the aggregate price payable to exercise such rights, warrants, options, other securities options or convertible securities and (B) warrants divided by the average of the Closing Sale Prices of the Voting Class A Common Stock for over the 20 ten (10) consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of announcement Business on the Record Date for such distribution. To the issuance extent that shares of Company Common Stock are not delivered after the expiration of such rights, options or warrants, optionsincluding because the distributed rights, other securities options or convertible securities An adjustment made pursuant warrants were not exercised, the Conversion Rate will be decreased to this Section 9(a)(ii) shall the Conversion Rate that would then be made successively whenever in effect had the increase with respect to the distribution of such rights, warrants, options, other securities options or convertible securities are issued, and shall become effective warrants been made on the day following the date basis of announcement delivery of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or only the number of shares of Voting Company Common Stock actually issued upon conversion of convertible securities actually issued)delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 9(a)(ii10.4(b), in determining whether such any rights, warrants, options, other securities options or convertible securities warrants entitle the holder Purchaser to subscribe for or purchase or exercise a conversion right for shares of . Voting Company Common Stock at a price that is less than the average of the Closing Sale Price Prices of Class A Common Stock over the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stockapplicable ten (10) consecutive Trading Day period, there shall will be taken into account any consideration received by the Corporation Company receives for such rights, warrants, options, other securities options or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined in good faith by the Board Company’s board of Directorsdirectors.
(iiii) If the Corporation distributes an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the CorporationCompany’s Capital Stockcapital stock, evidences of the CorporationCompany’s indebtedness or other assets or property of the Corporation Company or any rights, options or warrants to acquire the Company’s capital stock or other securities, evidences of its Subsidiaries indebtedness or other assets or property of the Company to all or substantially all of the holders of the Corporation’s Voting Company Common Stock, excluding: Stock (1excluding (A) dividends, dividends or distributions and rights, warrants, options, other securities options or convertible securities referred warrants as to in which an adjustment was effected under Sections 9(a)(i)or 9(a10.4(a) (iior 10.4(b); (2B) dividends or distributions paid exclusively in cashcash covered under Section 10.4(d); and (3C) Spin-Offs described in this Section 9(a)(iii) belowOffs), then the Conversion Rate will be adjusted calculated based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Class A Common Stock for over the 20 ten (10) consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board Company’s board of Directorsdirectors) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Voting Company Common Stock as of the Open of Business on the record date Ex-Dividend Date for such distribution An distribution. Any adjustment made under the above portion of this Section 10.4(c) will become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment pursuant to the above paragraph shall be made successively whenever any formula will result in a decrease of the Conversion Rate. However, if such distribution is made not so paid or made, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will receive, in respect of each $1,000 principal amount thereof, at the same time and shall become effective upon the same terms as holders of Company Common Stock, without having to convert its Note(s), the amount and kind of the Relevant Distribution that such holder would have received if such holder owned a number of shares of Company Common Stock equal to the Conversion Rate on the day immediately after the dated fixed Record Date for the determination distribution. For purposes of stockholders entitled this Section 10.4(c)(i) (and subject in all respects to receive Section 10.4(f)):
(1) Rights, options or warrants distributed by the Company to all or substantially all holders of Company Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Company Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”):
(a) are deemed to be transferred with such shares of Company Common Stock;
(b) are not exercisable; and
(c) are also issued in respect of future issuances of Company Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c).
(2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will be deemed to terminate and expire on such date without exercise by any of the holders thereof).
(3) In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (2) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.4(c) was made:
(a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution. , deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Company Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Company Common Stock as of the date of such redemption or repurchase; and
(b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued.
(4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of:
(a) a dividend or distribution of shares of Company Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or
(b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then:
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and
(2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Company Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b).
(ii) With respect to an adjustment pursuant to this Section 9(a)(iii10.4(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Voting Company Common Stock or of shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices unit, that are, or, when issued, will be, listed or admitted for the first 20 Trading Days after the payment of such dividend or distribution shall have been made trading on a United States national securities exchange (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased calculated based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution the Close of Business on the Record Date for the Spin-Off; CR 1 = the Conversion Rate in effect immediately after such distribution the Close of Business on the Record Date for the Spin-Off; FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Company Common Stock applicable to one share of Voting Company Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Company Common Stock were to such capital stock or similar equity interest) over the first 20 ten (10) consecutive Trading Days after Day period commencing on, and including, the effective date of such for the Spin-Off MP O (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Voting Class A Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will occur be determined on the 20th last day of the Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Day Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of for such Spin-Off. Notwithstanding anything to the contrary hereinOff to, but excluding, the relevant Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredDate.
(ivd) If the Corporation makes any an Ex-Dividend Date occurs for a cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Company Common StockStock (other than any dividend or distribution in connection with the Company’s liquidation, in an aggregate amount that, together with other cash dividends dissolution or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stockwinding up), the Conversion Rate will be adjusted recalculated based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to the record date Close of Business on the Record Date for such distribution distribution; CR 1 = the Conversion Rate in effect immediately after the record date Close of Business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Class A Common Stock for over the 20 ten (10) consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date of Ex-Dividend Date for such distribution distribution; and C = the amount in cash per share of Company Common Stock the Corporation distributes Company pays, or distributes, to all or substantially all holders of Voting Company Common Stock that exceeds the Base Dividend An Stock. Any adjustment made pursuant to under this Section 9(a)(iv10.4(d) shall will become effective on the date immediately after the Close of Business on the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 9(a)(iv10.4(d) is declared but not so paid or made, the Conversion Rate shall again will be adjusted readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to Notwithstanding the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).foregoing
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Berkshire Grey, Inc.)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i(a) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation as followsCompany for the following events:
(i1) If the Corporation issues shares issuances to all or substantially all holders of Voting the Common Stock as a dividend or distribution on shares of Voting the Common Stock, or if a share split certain subdivisions or share combination is effectedcombinations of the Common Stock, in which event the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to at 5:00 p.m., New York City time, on the Record Date for such event CR 1 dividend or distribution or the effective date of such subdivision or combination CR1 = the Conversion Rate in effect immediately after the Record Date for such event OS O dividend or distribution or the effective date of such subdivision or combination OS0 = the number of shares of Voting Common Stock outstanding immediately prior to at 5:00 p.m., New York City time, on the Record Date for such event OS 1 dividend or distribution or the effective date of such subdivision or combination OS1 = the number of shares of Voting Common Stock that would be outstanding immediately after after, and solely as a result of, such event An event. Such adjustment made pursuant to this Section 9(a)(i) shall become effective on the date immediately after (x) the date fixed Record Date for the determination of stockholders entitled to receive such dividend or other distribution or (y) the effective date on which of such split subdivision or combination becomes effective, as applicablecombination. If any dividend or distribution of the type described in Section 10.05(a)(1) of this Section 9(a)(i) First Supplemental Indenture is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ii2) If the Corporation issues issuances to all or substantially all holders of Voting the Common Stock any rights, warrants, options of certain rights or other securities warrants entitling them to purchase, for a period of not more than 20 45 calendar days after the date of issuance thereof to subscribe for or purchase less, shares of the Voting Common Stock at a price less than the Current Market Price of Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares of the Voting Common Stock on the business day immediately preceding the time of announcement of such issuance, which event the Conversion Rate will be adjusted based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) formula: OS0 + Y where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR l at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after such event OS O the Record Date OS0 = the number of shares of Voting Common Stock outstanding immediately prior to such event at 5:00 p.m., New York City time, on the Record Date X = the total number of shares of Voting Common Stock issuable pursuant to such rights. warrants, options, other securities rights or convertible securities warrants Y = the quotient number of (A) shares of Common Stock equal to the aggregate price payable to exercise such rightsrights or warrants divided by the Current Market Price. Such adjustment shall become effective immediately after the Record Date for such distribution. In the event that such rights or warrants are not so distributed, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the Record Date for such distribution had not occurred. To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior Conversion Rate shall be readjusted to the date of announcement for Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, warrants, options, other securities rights or convertible securities An adjustment warrants been made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end basis of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number delivery of additional shares of Voting Common Stock actually issued (or only the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)delivered. For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in In determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by the Board of Directors.
(iii3) If the Corporation distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries distributions to all or substantially all of the holders of the Corporation’s Voting Common Stock, shares of the Capital Stock (other than the Common Stock), evidences of the Company’s indebtedness or assets, including securities, but excluding: :
(i) any dividends or distributions referred to in the clause (1) dividends, distributions above;
(ii) the rights and rights, warrants, options, other securities or convertible securities warrants referred to in Sections 9(a)(i)or 9(a) (ii); clause (2) above;
(iii) any dividends or distributions paid exclusively referred to in cashclause (4) below;
(iv) any dividends and distributions in connection with a reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition resulting in a change in the conversion consideration pursuant to Section 10.07 below; and or
(3v) Spinany spin-Offs described off to which the provisions set forth below in this Section 9(a)(iii10.06(a)(3) belowapply, then in which event the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after such the Record Date SP0 = the Current Market Price FMV = the Fair Market Value, on the Record Date, of the shares of Capital Stock, evidences of indebtedness or assets so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this clause (3) is, however, one pursuant to which the payment of a dividend or other distribution SP O on the Common Stock consists of shares of Capital Stock of, or similar equity interests in, a subsidiary or other business unit of the Company (i.e., a spinoff) that are, or, when issued, will be, traded or quoted on the NYSE or any other national or regional securities exchange or market, then the Conversion Rate will instead be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after the Record Date FMV0 = the average of the Closing Sale Prices of the Voting Common Capital Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for such distribution FMV = the Fair Market Value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock on the record date for such distribution An adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective on the day immediately after the dated fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 9(a)(iii) where there has been a payment of a dividend or other distribution on the Voting Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating interests distributed to a subsidiary or other business unit holders of the Corporation which have Closing Sale Prices for Common Stock applicable to one share of Common Stock over the first 20 10 consecutive Trading Days after Day period commencing on and including the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off effective date of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution FMV O spinoff MP0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock over the first 20 10 consecutive Trading Days after Day period commencing on and including the effective date of such Spin-Off MP O = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days spinoff. Such increase shall become effective immediately after the effective date of Record Date for such Spin-Off The adjustment to dividend or distribution. In the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day from, and including, the effective date of such Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any event that such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such distribution had not been declared.
(4) dividends or other distributions consisting exclusively of cash to all or substantially all holders of Common Stock (other than dividends or distributions made in connection with the Company’s liquidation, dissolution or winding-up or upon a consolidation or merger, sale, lease, transfer, conveyance or other disposition), in which event the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after the Record Date SP0 = the Current Market Price C = the amount in cash per share the Company distributes to holders of Common Stock. Such adjustment shall become effective immediately after the Record Date for such dividend or distribution. In the event that such distribution is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(iv5) If the Corporation makes any cash dividend purchases of Common Stock pursuant to a tender offer or distribution during exchange offer made by the Company or any of its subsidiaries to the Corporation’s quarterly fiscal periods to all or substantially all holders extent that the cash and value of Voting Common Stock, any other consideration included in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 the payment per share of Common Stock exceeds the Closing Sale Price of Common Stock on the Trading Day preceding the last date (the “Base DividendExpiration Date”) (appropriately adjusted from time on which tenders or exchanges may be made pursuant to time for any share dividends on such tender or subdivisions of exchange offer; in which event the Voting Common Stock), the Conversion Rate conversion rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to at 5:00 p.m., New York City time, on the record date for such distribution CR 1 Expiration Date CR1 = the Conversion Rate in effect immediately after the record date Expiration Date FMV = the Fair Market Value, on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for shares validly tendered or exchanged and not withdrawn as of the Expiration Date OS1 = the number of shares of Common Stock outstanding immediately after the last time tenders or exchanges may be made pursuant to such distribution SP O tender or exchange offer (the “Expiration Time”) OS0 = the number of shares of Common Stock outstanding immediately after the Expiration Time SP1 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period commencing on the Trading Day immediately succeeding the Expiration Date. An adjustment, if any, to the Conversion Rate pursuant to this Section 10.06(a)(5) shall become effective immediately prior to the opening of business on the Trading Day immediately following the Expiration Date. In the event that the Company or a subsidiary of the Company is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. Except as set forth in the preceding sentence, if the application of this Section 10.06(a)(5) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 10.06(a)(5).
(b) In cases where the Fair Market Value of assets, debt securities or certain rights, warrants or options to purchase the Company’s securities, applicable to one share of Common Stock, distributed to stockholders:
(i) equals or exceeds the average Closing Sale Price of Common Stock over the ten consecutive Trading Day period ending two Trading on the Record Date for such distribution, or
(ii) such average Closing Sale Price exceeds the Fair Market Value of such assets, debt securities or rights, warrants or options so distributed by less than $1.00, rather than being entitled to an adjustment in the Conversion Rate, the Holder of a Debenture will be entitled to receive upon conversion, in addition to the cash and shares of Common Stock, if any, the kind and amount of assets, debt securities or rights, warrants or options comprising the distribution, if any, that such Holder would have received if such Holder had converted such Debentures immediately prior to the Record Date for determining the stockholders entitled to receive the distribution.
(c) To the extent permitted by applicable law, the Company may from time to time increase the Conversion Rate by any amount for any period of at least 20 Business Days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to holders of record of the Debentures a notice of the increase, which notice will be given at least 15 calendar days prior to the effectiveness of any such increase, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(d) The Company may make such increases in the Conversion Rate, in addition to those required by Section 10.06(a)(1)-(5), as the Board of Directors deems advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes.
(e) No adjustment in the Conversion Rate shall be required unless such adjustment would require a change of at least one percent (1%) in such Conversion Rate; provided that any adjustments that by reason of this Section 10.06(e) are not required to be made shall be carried forward and the Company shall make such carry forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (x) annually on the anniversary of the Closing Date and otherwise (y)(1) five Business Days prior to the record date Maturity Date of the Debentures (whether at stated maturity or otherwise) or (2) prior to the Redemption Date or Fundamental Change Repurchase Date or Repurchase Date, unless such adjustment has already been made. All calculations under this Article 10 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. No adjustment need be made for rights to purchase Common Stock for any issuance of Common Stock or any securities convertible into or convertible for Common Stock or carrying the right to purchase any of the foregoing. Interest will not accrue on any cash into which the Debentures are convertible.
(f) Whenever the Conversion Rate is adjusted as herein provided, the Company will issue a press release containing the relevant information and make this information available on the Company’s website or through another public medium as the Company may use at that time. In addition, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has actual knowledge is still in effect. Promptly after delivery of such distribution C = certificate, the amount Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the holder of each Debentures at his last address appearing on the Register, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(g) In any case in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to which this Section 9(a)(iv) 10.06 provides that an adjustment shall become effective on the date immediately after (i) a Record Date for a dividend or distribution described in Section 10.06(a)(1), 10.06(a)(3), 10.06(a)(4), (ii) the effective date for a subdivision or combination of the Common Stock described in Section 10.06(a)(1), (iii) a Record Date for the determination of stockholders entitled to receive such dividend a rights or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate warrants pursuant to this Section 9(a)(iv10.06(a)(2), or (iv) shall be made, if the Corporation distributes, no later than 20 days after the payment expiration date for any aforesaid cash dividend tender or distribution in excess exchange offer pursuant to Section 10.06(a)(5), (each a “Determination Date”), the Company may elect to defer until the occurrence of the Base Dividend, applicable Adjustment Event (as hereinafter defined) (x) issuing to each the holder of any Debentures converted after such Determination Date and before the Series A Cumulative Convertible Preferred Shares an amount in cash equal to occurrence of such Adjustment Event, the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of additional shares of Voting Common Stock in which the shares Stock, if any, or other securities issuable upon such conversion by reason of the Series A Cumulative Convertible Preferred Shares held adjustment required by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).Adjustment Event over and
Appears in 1 contract
Sources: First Supplemental Indenture (Covanta Holding Corp)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or make a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effected, combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR 1 CR' = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 OS' = the number of shares of Voting Common Stock Shares outstanding immediately after such event An Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after the opening of business on the date immediately after (x) day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend or other distribution or (y) the date on which such share split or combination becomes effective, as applicableshare combination. If any dividend or distribution of the type described in this Section 9(a)(i13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of Voting its outstanding Common Stock any rights, warrants, options Shares certain rights or other securities entitling them for a period of not more than 20 days after the date of issuance thereof warrants to subscribe for or purchase shares of the Voting Common Stock, Shares (or securities convertible into shares of Voting or exchangeable or exercisable for Common Stock within 20 days after the issuance thereofShares) at a price per share (or having a conversion, in either case at an exchange or exercise price per share or a conversion price per share share) less than the Closing Sale Price of shares of the Voting Common Stock Shares on the business day immediately preceding the time of announcement of Record Date for shareholders entitled to receive such issuancerights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, rights or warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to such event CR l CR' = the Conversion Rate in effect immediately after such event OS O OS0 = the number of shares Common Shares outstanding on the close of Voting Common Stock outstanding immediately prior to business on the next Business Day following such event Record Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. warrants, options, other securities or convertible securities rights Y = the quotient number of (A) Common Shares equal to the aggregate offering price payable to exercise that the total number of shares so offered would purchase at such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices Price of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance Record Date of such rights, warrants, options, other securities issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or convertible securities An warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. If, at To the end of the period during which extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights, rights or warrants, options, other securities upon the expiration or convertible securities are exercisable termination of such rights or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights or warrants been based upon made on the basis of the delivery of only the number of additional shares of Voting Common Stock actually issued Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the number event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 9(a)(ii), in In determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all holders of its Common Shares, Common Shares of the holders Company, evidences of the Corporation’s Voting Common Stockits indebtedness or assets, including securities, but excluding: :
(1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2i) dividends or distributions paid exclusively referred to in cashSection 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and and
(3iii) Spin-Offs described dividends or distributions referred to in this Section 9(a)(iii) below, 13.4(d); then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR' = the Conversion Rate in effect immediately after such distribution SP O SP0 = the average Current Market Price of Common Shares on the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date Record Date for such distribution FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock Share on the record date Record Date for such distribution An Such adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to the opening of business on the day immediately after following the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 9(a)(iii13.4(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or common shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “"Spin-Off”"), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock shareholders entitled to receive such payment of such dividend or the distribution will shall be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 CR' = the Conversion Rate in effect immediately after such distribution FMV O FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one common share of Voting Common Stock over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off MP O distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 ten consecutive Trading-Day period commencing on and including the fifth Trading Days Day after the effective date of on which Ex-Dividend Trading commences for such Spin-Off distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th fourteenth Trading Day from, and including, after the effective date on which "Ex-Dividend Trading" commences for such distribution on The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of such Spin-Off. Notwithstanding anything to the contrary hereinCommon Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price shall not be reduced by more than $0.81 as a result of one of the Spin-Off Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Crimson Wine Group. If any Record Date for such dividend or distribution; provided that if such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to the Corporation’s quarterly fiscal periods to all extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)exchange offer is announced, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to on the record date for such distribution CR 1 tender or exchange offer expires CR' = the Conversion Rate in effect immediately after on the record day next succeeding the date for such distribution SP O tender or exchange offer expires AC = the average fair market value (as determined by the Board of Directors) of the Closing Sale Prices of the Voting Common Stock aggregate consideration paid or payable for the 20 consecutive Trading Days ending two Trading Days prior to the record date of shares purchased in such distribution C tender or exchange offer OS0 = the amount number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in cash per share the Corporation distributes tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made repurchase shares pursuant to this Section 9(a)(iv) shall become effective on any such tender or exchange offer, but the date immediately after the Record Date for the determination of stockholders entitled to receive Company is permanently prevented by applicable law from effecting any such dividend purchases or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or madeall such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend tender or distribution exchange had not been declared. No adjustment to the Conversion Rate pursuant to made.
(f) For purposes of this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction13.4, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within following terms shall have the meaning of Section 9(a)(i).indicated:
Appears in 1 contract
Sources: Indenture (Minefinders Corp Ltd.)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Corporation Company as follows:, except that the Company shall not make any adjustment to the Conversion Rate if Holders may participate, as a result of holding the Securities (and at the same time the holders of Common Shares participate), in the transaction described below as if such Holders of Securities held a number of Common Shares equal to the then-applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert their Securities.
(ia) If the Corporation issues shares Company, at any time or from time to time while any of Voting Common Stock as the Securities are outstanding, pays a dividend or makes a distribution on shares in Common Shares to all holders of Voting its outstanding Common StockShares, or if a share split the Company subdivides or share combination is effectedcombines its Common Shares, then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such event CR 1 dividend or distribution, or immediately prior to the open of business on the Business Day immediately following distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after the open of business on such event OS O Ex-Dividend Date or the Business Day immediately following such effective date, as applicable OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event OS 1 Ex-Dividend Date or effective date, as applicable OS' = the number of shares of Voting Common Stock Shares outstanding immediately after giving effect to such event An dividend, distribution, subdivision or combination, as applicable Such adjustment made pursuant to this Section 9(a)(i) shall become effective immediately after 9:00 a.m., New York City time, on the date immediately after (x) Business Day following the Record Date for such dividend or distribution, or the date fixed for the determination of stockholders entitled to receive for such dividend Common Share subdivision or other distribution or (y) the date on which such split or combination becomes effective, as applicablecombination. If any dividend or distribution of the type described in this Section 9(a)(i13.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation issues Company, at any time or from time to time while any of the Securities are outstanding, distributes to holders of all or substantially all holders of Voting its outstanding Common Stock any Shares certain rights, warrants, warrants or options or other securities entitling them for a period of not more than 20 days after the date of issuance thereof to subscribe for or to purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case Shares at an exercise a price per share or a conversion price per share Common Share less than the average of the last reported Closing Sale Price of shares Prices of the Voting Common Stock on Shares for the business day 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the time of announcement of declaration date for such issuancedistribution, which rights, warrants or options are exercisable for not more than 60 calendar days from the Record Date for such distribution, the Conversion Rate will shall be adjusted based on the following formula (provided that the Conversion Rate will shall be readjusted to the extent that such rights, warrants options, or other securities or convertible securities options are not exercised or converted prior to the expiration of the exercisability or convertibility thereoftheir expiration): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such event CR l distribution CR' = the Conversion Rate in effect immediately after the open of business on such event OS O Ex-Dividend Date OS0 = the number of shares of Voting Common Stock Shares outstanding immediately prior to such event the open of business on the Ex-Dividend Date X = the total number of shares of Voting Common Stock Shares issuable pursuant to such rights. , warrants, options, other securities or convertible securities options Y = the number of Common Shares equal to the quotient of (Aa) the aggregate price payable to exercise all such rights, warrants, options, other securities rights or convertible securities warrants and (Bb) the average of the Closing Sale Prices Price of the Voting Common Stock Shares for the 20 10 consecutive Trading Days ending two on the Trading Days prior to Day immediately preceding the Ex-Dividend Date for such distribution Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date of announcement for of the issuance of such rights, warrants, warrants or options, other securities or convertible securities An adjustment made . To the extent that Common Shares are not delivered pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities warrants or convertible securities are issued, and shall become effective on options upon the day following the date expiration or termination of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities warrants or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as options the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it the Conversion Rate which would have then be in effect had the adjustments made upon the issuance of such rights, warrants or options been based upon made on the basis of the delivery of only the number of additional shares of Voting Common Stock Shares actually issued (or delivered. In the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether event that such rights, warrantswarrants or options are not so issued, optionsthe Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shareholders entitled to receive such rights, other securities warrants or convertible securities options had not been fixed. In determining whether any rights, warrants or options entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock Shares at less than the average such Closing Sale Price of the Voting Common StockPrice, and in determining the aggregate exercise or conversion offering price payable for of such shares of Voting Common StockShares, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities warrants or convertible securities options and any amount payable on exercise or conversion thereof, with the value of such consideration consideration, if other than cash cash, to be determined in good faith by the Board of DirectorsDirectors of the Company. For the purposes of this Section 13.04(c), rights, warrants or options distributed by the Company to all holders of the Common Shares entitling them to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights, warrants or options, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such Common Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.04(c) (and no adjustment to the Conversion Price under this Section 13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, warrants or options shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.04(c). If any such right, warrant or option, including any such existing rights, warrants or options distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, warrants or options become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights, warrants or options with such rights (and a termination or expiration of the existing rights, warrants or options without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, warrants or options, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.04(c) was made, (A) in the case of any such rights, warrants or options which shall all have been redeemed or purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights, warrants or options (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (B) in the case of such rights, warrants or options which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, warrants or options had not been issued.
(iiic) If the Corporation Company, at any time or from time to time while the Securities are outstanding, distributes shares to holders of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries to all or substantially all of the holders its outstanding Common Shares, Common Shares, evidences of the Corporation’s Voting Common Stockindebtedness or assets or property, including securities, but excluding: :
(1i) dividends, dividends or distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) Section 13.04(a);
(ii) rights, warrants or options referred to in Section 13.04(b); and
(2iii) dividends or distributions paid exclusively in cash; and (3) Spin-Offs described in this Section 9(a)(iii) below, then the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution CR 1 CR' = the Conversion Rate in effect immediately after the open of business on such distribution SP O Ex-Dividend Date SP0 = the average Current Market Price of the Closing Sale Prices of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for Day immediately preceding such distribution Ex-Dividend Date FMV = the Fair Market Value fair market value (as determined in good faith by the Board of DirectorsDirectors of the Company) of the shares of Capital StockCommon Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding share Common Share as of Voting Common Stock the open of business on the record date Ex-Dividend Date for such distribution An Such adjustment made pursuant shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.04(c) by reference to the above paragraph actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive the rights under the rights plan attached to the Common Shares unless such rights are in respect of Ineligible Consideration or such rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets or property as described in this Section 13.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. For greater certainty, any rights under the rights plan received by a Holder on conversion of the Securities will be received by the Holder by reason of the Holder becoming an owner of Common Shares and not as consideration for the conversion of the Securities. If the then fair market value of the portion of the Common Shares, evidences of indebtedness or assets or property so distributed applicable to one Common Share is equal to or greater than the Current Market Price on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, in lieu of the foregoing adjustment, adequate provisions shall be made successively whenever any so that each Holder of a Security shall have the right to receive on conversion in respect of each Security held by such distribution Holder, in addition to the number of Common Shares which such Holder is made entitled to receive, the amount and shall become effective on kind of securities and assets such Holder would have received had such Holder already owned a number of Common Shares equal to the day then-applicable Conversion Rate immediately after prior to the dated fixed Record Date for the determination distribution of stockholders the securities or assets; provided that no Holder shall be entitled to receive “Ineligible Consideration,” as defined below in Section 13.06, but the Company shall have the right (at its sole option) to deliver either such distributionIneligible Consideration or “prescribed securities” for the purposes of clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada) as it applied on December 31, 2007 with a market value (as conclusively determined by the Company’s Board of Directors) equal to the market value of such ineligible consideration). With respect to an adjustment pursuant to this Section 9(a)(iii13.04(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock Shares or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “"Spin-Off”"), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record effective date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will the Spin-Off shall be increased based on the following formulaformula in lieu of the formula above: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after such distribution FMV O the effective date of the Spin-Off FMV0 = the average of the Closing Sale Prices of the capital stock Common Shares or similar equity interest distributed to holders of Voting Common Stock Shares applicable to one share of Voting Common Stock Share over the first 20 Trading Days after 10 consecutive Trading-Day period commencing on, and including, the effective date Ex-Dividend Date of such the Spin-Off MP O MP0 = the average of the Closing Sale Prices of the Voting Common Stock Shares over the first 20 10 consecutive Trading Days after Trading-Day period commencing on, and including, the effective date Ex-Dividend Date of such the Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th 10th Trading Day from, and including, the Ex-Dividend Date of the Spin-Off and shall be applied on a retroactive basis from, and including, the Ex-Dividend Date of the Spin-Off; provided that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the settlement date would occur during the 10 Trading Days from, and including, the Ex-Dividend Date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the settlement date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior the Ex-Dividend Date of the Spin-Off with respect to which the settlement date would occur during the three Trading Days from, and including, the Ex-Dividend Date of such Spin-Off. Notwithstanding anything , references to the contrary herein10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the Conversion Price shall not be reduced by more than $0.81 as a result Ex-Dividend Date of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredOff.
(ivd) If the Corporation makes any cash dividend or other distribution during any of the Corporation’s quarterly fiscal periods is paid to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)Shares, the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to the record date open of business on the Ex- Dividend Date for such dividend or distribution CR 1 CR' = the Conversion Rate in effect immediately after the record date for open of business on such distribution SP O Ex- Dividend Date SP0 = the average Current Market Price of the Closing Sale Prices of Common Shares on the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of Day immediately preceding such distribution Ex-Dividend Date C = the amount in cash per share the Corporation Company distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. Shares If any dividend or distribution described in this Section 9(a)(ivclause (d) is declared but not so paid or made, the new Conversion Rate shall again be adjusted readjusted to the Conversion Rate that would then be in effect if such dividend or other distribution had not been declared. No adjustment .
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer (as such terms are defined under applicable U.S. securities laws) for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the average of the last reported Closing Sale Prices of the Common Shares over the 10 consecutive Trading-Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate pursuant to this Section 9(a)(iv) shall be madeincreased based on the following formula: where, if CR0 = the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution Conversion Rate in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal effect immediately prior to the product open of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible business on the date preceding Trading Day next succeeding the date on which such tender or exchange offer expires CR' = the Conversion Rate in effect immediately after open of business on the Trading Day next succeeding the date on which such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).tender or exchange offer expires
Appears in 1 contract
Sources: Indenture (Jaguar Mining Inc)
Conversion Rate Adjustments. Each share The Conversion Rate shall be adjusted, from time to time by the Company, upon the occurrence of any of the Series A Cumulative Convertible Preferred Shares following events, except that the Company shall be convertible into not make any adjustments to the Conversion Rate if Holders of the Notes have the right to participate (other than in the case of a share split or share combination), at the same time and upon the same terms as holders of Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 4.05, without having to convert their Notes as if they held a number of shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time multiplied by the Corporation principal amount (expressed in accordance with the provisions thousands) of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time Notes held by the Corporation as follows:such Holder.
(ia) If the Corporation Company exclusively issues shares of Voting Common Stock as a dividend or distribution on shares of Voting its Common Stock, or if the Company effects a share split or share combination is effectedcombination, the Conversion Rate will shall be adjusted based on the following formula: CR 1 CR1 = CR O times OS 1 divided by OS O CR0 × OS1 OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such event CR 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the open of business on such event OS O Ex-Dividend Date or effective date; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the open of business on such event OS 1 Ex-Dividend Date or effective date; and OS1 = the number of shares of Voting Common Stock outstanding immediately after giving effect to such event An dividend, distribution, share split or share combination. Any adjustment made pursuant to under this Section 9(a)(i4.05(a) shall become effective immediately after the open of business on the date immediately after (x) the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution distribution, or (y) immediately after the open of business on the effective date on which for such share split or combination becomes effectiveshare combination, as applicable. If any dividend or distribution of the type described in this Section 9(a)(i4.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) If the Corporation issues to all or substantially all holders immediately readjusted, effective as of Voting Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 20 days after the date of issuance thereof to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares of the Voting Common Stock on the business day immediately preceding the time of announcement of such issuance, the Conversion Rate will be adjusted based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O = the Conversion Rate in effect immediately prior to such event CR l = the Conversion Rate in effect immediately after such event OS O = the number of shares of Voting Common Stock outstanding immediately prior to such event X = the total number of shares of Voting Common Stock issuable pursuant to such rights. warrants, options, other securities or convertible securities Y = the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by the Board of Directors.
(iii) If the Corporation distributes shares of the Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or other assets or property of the Corporation or any of its Subsidiaries Directors determines not to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: (1) dividends, distributions and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(a) (ii); (2) dividends or distributions paid exclusively in cash; and (3) Spin-Offs described in this Section 9(a)(iii) below, then the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date for such distribution FMV = the Fair Market Value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Stock on the record date for such distribution An adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective on the day immediately after the dated fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 9(a)(iii) where there has been a payment of a dividend or other distribution on the Voting Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O = the Conversion Rate in effect immediately prior to such distribution CR 1 = the Conversion Rate in effect immediately after such distribution FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock over the first 20 Trading Days after the effective date of such Spin-Off MP O = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day from, and including, the effective date of such Spin-Off. Notwithstanding anything to the contrary herein, the Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iv) If the Corporation makes any cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock), the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O = the Conversion Rate in effect immediately prior to the record date for such distribution CR 1 = the Conversion Rate in effect immediately after the record date for such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive pay such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No The Company shall not pay any dividend or make any distribution on its Common Stock held in treasury, if any.
(b) If the Company issues to all or substantially all holders of its Common Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.05(b) and Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. The Company shall not issue any such rights, options or warrants in respect of its Common Stock held in treasury, if any.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company or rights, options or warrants to acquire Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances covered in Section 4.05(a), Section 4.05(b) or Section 4.05(e), (ii) dividends or distributions paid exclusively in cash covered in Section 4.05(d) and (iii) Spin-Offs as to which the provisions set forth below in this Section 4.05(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × SP0 SP0 – FMV where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.05(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 4.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section 4.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × FMV0 + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate pursuant to this Section 9(a)(ivunder the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that (x) shall be madein respect of any conversion of Notes for which Physical Settlement is applicable, if the Corporation distributesrelevant Conversion Date occurs during the Valuation Period, no later than 20 days the reference in the preceding paragraph to “10” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, subject to the immediately preceding sentence, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. Further if the Ex-Dividend Date for such Spin-Off is after the payment date 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references to “10” or “10th” in the preceding paragraph and this paragraph , shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If the distribution constituting the Spin-Off is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not been declared.
(d) If any aforesaid cash dividend or distribution in excess is made to all or substantially all holders of the Base DividendCommon Stock (other than distributions described in Section 4.05(e)), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × SP0 SP0 – C where, CR0 = the Conversion Rate in effect immediately prior to each holder the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to Common Stock on the product of (A) Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share the Corporation Company distributes to holders of Voting its Common Stock. Any increase pursuant to this Section 4.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock (subject to the tender offer rules under the Exchange Act then applicable), to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the Base Dividendaverage of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, multiplied and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × AC + (SP1 × OS1) OS0 × SP1 where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires; CR1 = the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by (Bthe Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Voting Common Stock in which outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS1 = the Series A Cumulative Convertible Preferred Shares held by number of shares of Common Stock outstanding immediately after the date such holder is convertible tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this Section 4.05(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such payment to tender or exchange offer and such holder. The Base Dividend shall be Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).immedia
Appears in 1 contract
Sources: Indenture (Nuvasive Inc)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares The Conversion Rate shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by only as set forth below; provided, however, that the Corporation in accordance with the provisions of this Section 9. References Company shall not make any adjustments to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) if Holders participate (as a result of holding the Notes, and at the same time as the holders of the Common Stock participate) in any of the transactions described in this Section 12.05 as if such Holders held a share split or share combination. The number of shares of Common Stock equal to the Conversion Rate shall be adjusted from time immediately prior to time the event that otherwise would result in a Conversion Rate adjustment, multiplied by the Corporation as follows:principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes.
(ia) If the Corporation Company issues shares of Voting Common Stock as a dividend or distribution on shares of Voting Common Stock, or if the Company effects a share split or share combination is effectedcombination, the Conversion Rate will be adjusted based on the following formula: CR 1 CR’ = CR O times OS 1 divided by OS O CR0 x OS’ OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such event CR 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect immediately after the close of business on the Record Date for such event OS O dividend or distribution, or immediately after the open of business on the effective date of such share split or share combination, as the case may be; OS0 = the number of shares of Voting the Common Stock outstanding immediately prior to the close of business on the Record Date for such event OS 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; and OS’ = the number of shares of Voting the Common Stock outstanding immediately after giving effect to such event An dividend, distribution, share split or share combination. Any adjustment made pursuant to this Section 9(a)(i12.05(a) shall become effective on the date immediately after (x) the date fixed close of business on the Record Date for the determination of stockholders entitled to receive such dividend or other distribution or (y) the open of business on the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this Section 9(a)(i12.05(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation issues Company distributes to all or substantially all holders of Voting Common Stock any rights, warrants, options rights or other securities warrants entitling them to purchase, for a period of not more than 20 45 days after the declaration date of issuance thereof to subscribe for or purchase the distribution, shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares average of the Voting Last Reported Sale Prices of the Common Stock on for the business day ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of declaration date for such issuancedistribution, the Conversion Rate will be adjusted based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 formula: CR’ = CR O times (OS O +X) divided by (OS O +Y) CR0 x OS0 + X OS0 + Y where, CR O CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such event CR l distribution; CR’ = the new Conversion Rate in effect immediately after the close of business on the Record Date for such event OS O distribution; OS0 = the number of shares of Voting the Common Stock outstanding immediately prior to the close of business on the Record Date for such event distribution; X = the total number of shares of Voting the Common Stock issuable pursuant to such rights. rights or warrants, options, other securities or convertible securities ; and Y = the quotient number of (A) shares of the Common Stock equal to the aggregate price payable to exercise such rights, warrants, options, other securities rights or convertible securities and (B) warrants divided by the average of the Closing Last Reported Sale Prices of the Voting Common Stock for over the 20 ten consecutive Trading Days Day period ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issuedon, and shall become effective on including the day following Trading Day immediately preceding the declaration date of announcement of for such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)distribution. For the purposes of this Section 9(a)(ii), 12.05(b) in determining whether such rights, warrants, options, other securities any rights or convertible securities warrants entitle the holder holders to subscribe for or purchase or exercise a conversion right for shares of . Voting the Common Stock at less than the average Closing Last Reported Sale Price per share of the Voting Common StockStock on the Trading Day immediately preceding the declaration date of such distribution, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation Company for such rights, warrants, options, other securities rights or convertible securities warrants and any amount payable on upon exercise or conversion thereof, with the value of such consideration consideration, if other than cash to cash, as shall be determined in good faith by the Board of Directors. Any increase made under this Section 12.05(b) will be made successively whenever any such rights or warrants are distributed and shall become effectively immediately after the close of business on the Record Date. If any right or warrant described in this Section 12.05(b) is not exercised prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of the Common Stock actually delivered. If such rights or warrants are not so distributed, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to distribute such rights or warrants, to the Conversion Rate that would then be in effect if the Record Date for the distribution had not occurred.
(iiic) If the Corporation Company distributes shares of the Corporation’s Capital Stockcapital stock, evidences of the CorporationCompany’s indebtedness or other assets or property of or rights, options or warrants to acquire the Corporation Company’s capital stock or any of its Subsidiaries other securities, to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: :
(1i) dividends, distributions distributions, rights or warrants as to which an adjustment was effected pursuant to Section 12.05(a) and rights, warrants, options, other securities or convertible securities referred to in Sections 9(a)(i)or 9(aSection 12.05(b) of this Eighteenth Supplemental Indenture;
(ii); (2) dividends or distributions paid exclusively in cashcash as to which an adjustment was effected pursuant to Section 12.05(d) below; and and
(3iii) Spinspin-Offs described offs to which the provisions set forth below in this Section 9(a)(iii12.05(c) belowshall apply, (any of such shares of Capital Stock, evidences of indebtedness or other assets or property or rights, options or warrants to acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the Conversion Rate will be adjusted based on the following formula: CR 1 CR’ = CR O times SP O divided by (SP O -FMV) CR0 x ▇▇▇ ▇▇▇ – FMV where, CR O CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution CR 1 distribution; CR’ = the new Conversion Rate in effect immediately after the close of business on the Record Date for such distribution SP O distribution; SP0 = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for over the 20 ten consecutive Trading Days Day period ending two on and including the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property Distributed Property distributed with respect to each outstanding share of Voting the Common Stock on the record date Ex-Dividend Date for such distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution An adjustment made pursuant for purposes of this Section 12.05(c) by reference to the above actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. The adjustment described in the preceding paragraph shall be made successively whenever any such distribution is made and of this Section 12.05(c) shall become effective on the day immediately after the dated fixed close of business on the Record Date for the determination of stockholders entitled to receive such applicable distribution. With respect to an adjustment pursuant to this Section 9(a)(iii12.05(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock or of shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend that are, or distribution shall have been made when issued, will be, traded on a U.S. national securities exchange, (such transaction herein. referred to as each, a “Spinspin-Offoff”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, ) the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record date fixed for determination tenth Trading Day immediately following, and including, the Ex-Dividend Date of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution the spin-off will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O CR’ = CR0 x FMV0 + MP0 MP0 where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 the close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend Date of the spin-off; CR’ = the new Conversion Rate in effect immediately after such distribution FMV O the close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend Date of the spin-off; FMV0 = the average of the Closing Last Reported Sale Prices of the capital stock or similar equity interest (determined as if references in the definition of “Last Reported Sale Price” to the Common Stock were to such capital stock or similar equity interest) distributed to holders of Voting the Common Stock applicable to one share of Voting the Common Stock over the first 20 ten consecutive Trading Days after Day period immediately following, and including, the effective date Ex-Dividend Date of such Spinthe spin-Off MP O off; and MP0 = the average of the Closing Last Reported Sale Prices of the Voting Common Stock over the first 20 ten consecutive Trading Days after the effective date of such Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day fromperiod immediately following, and including, the Ex-Dividend Date of the spin-off. The adjustment described in the preceding paragraph of this Section 12.05(c) shall occur immediately after the close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend Date of the spin-off; provided that, for purposes of determining the Conversion Rate in respect of any conversion during the ten Trading Days following the effective date of any spin-off, references within the portion of this Section 12.05(c) related to “spin-offs” to ten trading days shall be deemed replaced with such Spinlesser number of Trading Days as have elapsed between the Ex-Off. Notwithstanding anything to Dividend Date of such spin-off and the contrary herein, the relevant Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine GroupDate. If any such dividend or distribution described in this Section 9(a)(iii12.05(c) is declared but not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 12.05(c) (and subject in all respect to Section 12.11 of this Eighteenth Supplemental Indenture), rights, options or warrants distributed by the Company to all holders of its Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 12.05(c) (and no adjustment to the Conversion Rate under this Section 12.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Eighteenth Supplemental Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate will be adjusted based on the following formula: CR’ = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution; CR’ = the new Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share the Company distributes to holders of Common Stock. Such an adjustment to the Conversion Rate made pursuant to this Section 12.05(d) shall become effective immediately after the close of business on the Record Date for the applicable dividend or distribution. If any dividend or distribution described in this Section 12.05(d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of the Corporation’s quarterly fiscal periods to all its Subsidiaries makes a payment in respect of a tender offer or substantially all holders of Voting exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 the payment per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 CR’ = CR O times SP O divided by CR0 x AC + (SP O –CSP’ x OS’) OS0 x SP’ where, CR O CR0 = the Conversion Rate in effect immediately prior to the record close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date for such distribution CR 1 tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately after following the record close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date for such distribution SP O tender or exchange offer expires; AC = the average aggregate value of all cash and any other consideration (as determined in good faith by the Closing Sale Prices Board of the Voting Directors) paid or payable for shares of Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of purchased in such distribution C tender or exchange offer; OS0 = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which outstanding immediately prior to the expiration of such tender or exchange offer (prior to giving effect to the purchase of all shares of the Series A Cumulative Convertible Preferred Shares held by Common Stock accepted for purchase or exchange in such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).tender or exc
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Sources: Eighteenth Supplemental Indenture (Standard Pacific Corp /De/)
Conversion Rate Adjustments. Each share The Conversion Rate shall be subject to adjustment from time to time, without duplication, upon the occurrence of any of the Series A Cumulative Convertible Preferred Shares shall be convertible into following events, provided, that the Company will not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as Holders of our Common Stock and solely as a result of holding the Notes, in any of the transactions described below without having to convert their Notes as if they held a number of shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time multiplied by the Corporation in accordance with the provisions principal amount of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9Notes held by such Holder, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time divided by the Corporation as follows$1,000:
(ia) If the Corporation Company issues solely shares of Voting Common Stock as a dividend or distribution on all or substantially all of its shares of Voting Common Stock, or if a share split the Company subdivides or share combination is effectedcombines Common Stock, the Conversion Rate will shall be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR O CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such event CR 1 dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such event OS O dividend or distribution, or effective date of such subdivision or combination of Common Stock, as the case may be; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the Open of Business on the Ex-Dividend Date for such event OS 1 dividend or distribution or the effective date of such subdivision or combination of Common Stock, as the case may be; and OS1 = the number of shares of Voting Common Stock that would be outstanding immediately after giving effect to such event An dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be. Any adjustment made pursuant to under this Section 9(a)(i5.05(a) shall become effective immediately after the Open of Business on the date immediately after (x) the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution or (y) the effective date on which of such split subdivision or combination becomes effectiveof Common Stock, as applicablethe case may be. If any dividend such dividend, distribution, subdivision or distribution combination described in this Section 9(a)(i5.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declareddeclared or subdivision or combination had not been announced.
(iib) If the Corporation issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Voting Common Stock of any rights, warrants, options or other securities warrants entitling them such holders for a period of not more than 20 60 calendar days after from the announcement date of issuance thereof for such distribution to subscribe for or purchase shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the average of the Closing Sale Price of shares Prices of the Voting Common Stock on for the business day 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of date for such issuancedistribution, the Conversion Rate will shall be adjusted increased based on the following formula (provided that the Conversion Rate will be readjusted to the extent that such rights, warrants options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) formula: where, CR O CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such event CR l distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such event OS O distribution; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the Open of Business on the Ex-Dividend Date for such event distribution; X = the total number of shares of Voting Common Stock issuable pursuant to such rights. , options or warrants, options, other securities or convertible securities ; and Y = the quotient number of (A) shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 5.05(b) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. Any increase made under this Section 5.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. To the extent that shares of Common Stock are not delivered after the exercise of such rights, options or warrants, optionsthe Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, other securities options or convertible securities and (B) warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if the Record Date for such distribution had not occurred. For purposes of this Section 5.05(b), in determining whether any rights, options or warrants entitle the Holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Voting Common Stock for over the 20 applicable 10 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date of announcement of such issuance. If, at the end of the Day period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued). For purposes of this Section 9(a)(ii), in determining whether such rights, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting the Common Stock, there shall be taken into account any consideration received by the Corporation Company receives for such rights, warrants, options, other securities options or convertible securities warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined in good faith by the Board of Directors.
(iiiA) If the Corporation distributes an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the CorporationCompany’s Capital Stockcapital stock, evidences of the CorporationCompany’s indebtedness or other assets or property of the Corporation Company or any of its Subsidiaries rights, options or warrants to acquire the Company’s capital stock or other securities, to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: Stock (1excluding (i) dividends, dividends or distributions and rights, warrants, options, other securities options or convertible securities referred warrants as to in Sections 9(a)(i)or 9(awhich an adjustment was effected under Section 5.05(a) or Section 5.05(b) above; (ii); (2) dividends or distributions paid exclusively in cashcash covered under Section 5.05(d); and (3iii) Spin-Offs described in this Section 9(a)(iii) belowOffs), then the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR O CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution CR 1 distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date Ex-Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Voting Common Stock as of the Open of Business on the record date Ex-Dividend Date for such distribution An distribution. Any increase made under the above portion of this Section 5.05(c) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. No adjustment made pursuant to the above paragraph shall be made successively whenever any formula will result in a decrease of the Conversion Rate. However, if such distribution is made not so paid or made, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive (without having to convert its notes), in respect of each $1,000 Original Principal Amount thereof, at the same time and shall become effective upon the same terms as holders of the Common Stock, the amount and type of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the day immediately after the dated fixed Record Date for the determination of stockholders entitled to receive such distribution. .
(B) With respect to an adjustment pursuant to this Section 9(a)(iii5.05(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Voting Common Stock or of shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices unit, that are, or, when issued, will be, listed or admitted for the first 20 Trading Days after the payment of such dividend or distribution shall have been made trading on a U.S. national securities exchange (such transaction herein. referred to as a “Spin-Off”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business on the record date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution will shall be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 the Open of Business on the Ex-Dividend Date for the Spin-Off; CR1 = the Conversion Rate in effect immediately after such distribution the Open of Business on the Ex-Dividend Date for the Spin-Off; FMV O = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Voting Common Stock applicable to one share of Voting Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 20 10 consecutive Trading Days after Day period commencing on, and including, the effective date of such for the Spin-Off MP O (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 consecutive Trading Days after the effective date of such Spin-Off Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph will occur of this Section 5.05(c) shall be determined on the 20th last day of the Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 5.05(c)(B) related to 10 Trading Day Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of for such Spin-Off. Notwithstanding anything to the contrary hereinOff to, but excluding, the relevant Conversion Price shall not be reduced by more than $0.81 as a result of the Spin-Off of the Crimson Wine Group. If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredDate.
(ivd) If the Corporation makes any an Ex-Dividend Date occurs for a cash dividend or distribution during any of the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting the outstanding Common StockStock (other than any dividend or distribution in connection with the Company’s liquidation, in an aggregate amount that, together with other cash dividends dissolution or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stockwinding up), the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR O CR0 = the Conversion Rate in effect immediately prior to the record date Open of Business on the Ex-Dividend Date for such distribution CR 1 distribution; CR1 = the Conversion Rate in effect immediately after the record date Open of Business on the Ex-Dividend Date for such distribution SP O distribution; SP0 = the average of the Closing Sale Prices of the Voting Common Stock for over the 20 10 consecutive Trading Days Day period ending two on, and including, the Trading Days prior to Day immediately preceding the record date of Ex-Dividend Date for such distribution distribution; and C = the amount in cash per share of Common Stock the Corporation distributes Company pays, or distributes, to all or substantially all holders of Voting the Common Stock that exceeds the Base Dividend An adjustment Stock. Any increase made pursuant to under this Section 9(a)(iv5.05(d) shall become effective on the date immediately after the Record Open of Business on the Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or distribution. If No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 9(a)(iv5.05(d) is declared but not so paid or made, the Conversion Rate shall again be adjusted readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive (without having to convert its Notes) for each $1,000 Original Principal Amount of Notes, at the same time and upon the same terms as holders of shares of Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock and, if the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Trading Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of Common Stock outstanding immediately after the Expiration Time (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date. The adjustment to the Conversion Rate pursuant to under this Section 9(a)(iv5.05(e) shall be madedetermined at the Close of Business on the tenth Trading Day immediately following, but excluding, the Expiration Date but shall be given effect at the Open of Business on the Trading Day next succeeding the Expiration Date. In respect of any conversion during the 10 Trading Days commencing on the Trading Day next succeeding the Expiration Date, references within this Section 5.05(e) to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding, the relevant Conversion Date. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate.
(f) To the extent that the Company has a rights plan in effect upon conversion of the Notes, the Holders shall receive, in addition to the Common Stock received in connection with such conversion, the rights under the rights plan, unless prior to any conversion, the rights have separated from the Common Stock, in which case the Conversion Rate will be adjusted at the time of separation as if the Corporation distributesCompany distributed to all holders of Common Stock, no later than shares of the Company’s capital stock, evidences of indebtedness or other assets or property as described in Section 5.05(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
(g) To the extent permitted by applicable law and applicable listing rules of the Nasdaq Global Select Market and any other securities exchange on which the Company’s securities are then listed, (i) the Company is permitted to increase the Conversion Rate of the Notes by any amount for a period of at least 20 days after Business Days so long as the payment date for any aforesaid cash increase is irrevocable during the period and the Board of Directors determines that such increase would be in the Company’s best interest and (ii) the Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of the Common Stock or rights to purchase shares of the Common Stock in connection with a dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment (or rights to such holderacquire shares) or similar events. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).Company must give at least 15 days’ prior no
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Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares The Conversion Rate shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by only as set forth below; provided, however, that the Corporation in accordance with the provisions of this Section 9. References Company shall not make any adjustments to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) if Holders participate (as a result of holding the Notes, and at the same time as the holders of Common Stock participate) in any of the transactions described in this Section 12.05 as if such Holders held a share split or share combination. The number of shares of Common Stock equal to the Conversion Rate shall be adjusted from time immediately prior to time the event that otherwise would result in a Conversion Rate adjustment, multiplied by the Corporation as follows:principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes.
(ia) If the Corporation Company issues shares of Voting Common Stock as a dividend or distribution on shares of Voting Common Stock, or if the Company effects a share split or share combination is effectedcombination, the Conversion Rate will be adjusted based on the following formula: CR 1 CR’ = CR O times OS 1 divided by OS O CR0 x OS’ OS0 where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such event CR 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such event OS O dividend or distribution, or immediately after the open of business on the effective date of such share split or share combination, as the case may be; OS0 = the number of shares of Voting Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such event OS 1 dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as the case may be; and OS’ = the number of shares of Voting Common Stock outstanding immediately after giving effect to such event An dividend, distribution, share split or share combination. Any adjustment made pursuant to this Section 9(a)(i12.05(a) shall become effective on the date immediately after (x) the date fixed open of business on the Ex-Dividend Date for the determination of stockholders entitled to receive such dividend or other distribution or (y) the open of business on the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this Section 9(a)(i12.05(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(iib) If the Corporation issues Company distributes to all or substantially all holders of Voting Common Stock any rights, warrants, options rights or other securities warrants entitling them to purchase, for a period of not more than 20 45 days after the declaration date of issuance thereof to subscribe for or purchase the distribution, shares of the Voting Common Stock, or securities convertible into shares of Voting Common Stock within 20 days after the issuance thereof, in either case at an exercise price per share or a conversion price per share less than the Closing Sale Price of shares average of the Voting Last Reported Sale Prices of the Common Stock on for the business day ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time of announcement of declaration date for such issuancedistribution, the Conversion Rate will be adjusted based on the following formula (provided that formula: CR’ = CR0 x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution; OS0 = the number of shares of the Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution. For the purposes of this Section 12.05(b) in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Prices of the Common Stock, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable upon exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors. Any increase made under this Section 12.05(b) will be readjusted to the extent that made successively whenever any such rights, options or warrants options, are distributed and shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If any right or other securities or convertible securities are warrant described in this Section 12.05(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR O = the new Conversion Rate shall be decreased to the Conversion Rate that would then be in effect immediately prior had the increase with respect to such event CR l = the Conversion Rate in effect immediately after such event OS O = the number of shares of Voting Common Stock outstanding immediately prior to such event X = the total number of shares of Voting Common Stock issuable pursuant to such rights. warrants, options, other securities or convertible securities Y = the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the date of announcement for the issuance of such rights, warrants, options, other securities options or convertible securities An adjustment warrants been made pursuant to this Section 9(a)(ii) shall be made successively whenever such rights, warrants, options, other securities or convertible securities are issued, and shall become effective on the day following the date basis of announcement delivery of such issuance. If, at the end of the period during which such rights, warrants, options, other securities or convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Voting Common Stock actually issued (or only the number of shares of Voting Common Stock actually issued upon conversion of convertible securities actually issued)delivered. For purposes of this Section 9(a)(ii)If such rights or warrants are not so distributed, in determining whether such rightsthe Conversion Rate shall be decreased, warrants, options, other securities or convertible securities entitle the holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Stock at less than the average Closing Sale Price effective as of the Voting Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Voting Common Stock, there shall be taken into account any consideration received by the Corporation for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined by date the Board of DirectorsDirectors determines not to distribute such rights or warrants, to the Conversion Rate that would then be in effect if the distribution had not been declared.
(iiic) If the Corporation Company distributes shares of the Corporation’s Capital Stock, evidences of the CorporationCompany’s indebtedness or other assets or property of or rights, options or warrants to acquire the Corporation Company’s Capital Stock or any of its Subsidiaries other securities, to all or substantially all of the holders of the Corporation’s Voting Common Stock, excluding: :
(1i) dividends, distributions and rightsdistributions, warrants, options, other securities rights or convertible securities referred warrants as to in Sections 9(a)(i)or 9(awhich an adjustment was effected pursuant to Section 12.05(a) or Section 12.05(b) of this Supplemental Indenture;
(ii); (2) dividends or distributions paid exclusively in cashcash as to which an adjustment was effected pursuant to Section 12.05(d) of this Supplemental Indenture; and and
(3iii) Spinspin-Offs described offs to which the provisions set forth below in this Section 9(a)(iii12.05(c) belowshall apply, then the Conversion Rate will be adjusted based on the following formula: CR 1 CR’ = CR O times SP O divided by (SP O -FMV) CR0 x ▇▇▇ ▇▇▇ – FMV where, CR O CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution CR 1 distribution; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution SP O distribution; SP0 = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for over the 20 ten consecutive Trading Days Day period ending two on and including the Trading Days prior to Day immediately preceding the record date Ex–Dividend Date for such distribution distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences evidence of indebtedness, assets assets, property, rights or property warrants, distributed with respect to each outstanding share of Voting Common Stock on the record date Ex-Dividend Date for such distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 12.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. An adjustment to the Conversion Rate made pursuant to the above paragraph shall be made successively whenever any such distribution is made and this Section 12.05(c) shall become effective on the day immediately after the dated fixed open of business on the Ex-Dividend Date for the determination of stockholders entitled to receive such applicable distribution. With respect to an adjustment pursuant to this Section 9(a)(iii12.05(c) where there has been a payment of a dividend or other distribution on the Voting Common Stock or of shares of capital stock Capital Stock of any class or series, or similar equity interest, of or relating to a subsidiary Subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend that are, or distribution shall have been made when issued, will be, traded on a U.S. national securities exchange (such transaction herein. referred to as each, a “Spinspin-Offoff”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before the close of business 5:00 p.m., New York City time, on the record tenth Trading Day immediately following, and including, the effective date fixed for determination of holders of Voting Common Stock entitled to receive such payment of such dividend or distribution the spin-off will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O CR’ = CR0 x FMV0 + MP0 MP0 where, CR O CR0 = the Conversion Rate in effect immediately prior to such distribution CR 1 the tenth Trading Day immediately following, and including, the effective date of the spin-off; CR’ = the new Conversion Rate in effect immediately after such distribution FMV O the tenth Trading Day immediately following, and including, the effective date of the spin-off; FMV0 = the average of the Closing Last Reported Sale Prices of the capital stock Capital Stock or similar equity interest distributed to holders of Voting the Common Stock applicable to one share of Voting Common Stock over the first 20 Trading Days after the effective date of such Spin-Off MP O = the average of the Closing Sale Prices of the Voting Common Stock over the first 20 ten consecutive Trading Days after the effective date of such Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 20th Trading Day fromperiod immediately following, and including, the effective date of such Spinthe spin-Offoff; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the effective date of the spin-off. Notwithstanding anything The adjustment to the contrary hereinConversion Rate described in this Section 12.05(c) shall occur immediately after the tenth Trading Day immediately following, and including, the Conversion Price shall not be reduced by more than $0.81 as a result effective date of the Spinspin-Off off; provided that, for purposes of determining the Crimson Wine GroupConversion Rate in respect of any conversion during the ten Trading Days following the effective date of any spin-off, references within the portion of this Section 12.05(c) related to “spin-offs” to ten trading days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such spin-off and the relevant Conversion Date. If any such dividend or distribution described in this Section 9(a)(iii12.05(c) is declared but not so paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 12.05(c) (and subject in all respect to Section 12.11 of this Supplemental Indenture), rights, options or warrants distributed by the Company to all holders of its Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 12.05(c) (and no adjustment to the Conversion Rate under this Section 12.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Supplemental Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate will be adjusted based on the following formula: CR’ = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR’ = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share the Company distributes to holders of Common Stock. Such an adjustment to the Conversion Rate made pursuant to this Section 12.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this Section 12.05(d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ive) If the Corporation makes any cash dividend Company or distribution during any of the Corporation’s quarterly fiscal periods to all its Subsidiaries makes a payment in respect of a tender offer or substantially all holders of Voting exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 the payment per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of the Voting Common Stock)Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will shall be adjusted increased based on the following formula: CR 1 CR’ = CR O times SP O divided by CR0 x AC + (SP O –CSP’ x OS’) OS0 x SP’ where, CR O CR0 = the Conversion Rate in effect immediately prior to at the record close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date for such distribution CR 1 tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or exchange offer (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS’ = the number of shares of Common Stock outstanding immediately after the record date for expiration of such distribution SP O tender or exchange offer (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender or exchange offer); and SP’ = the average of the Closing Last Reported Sale Prices of the Voting Common Stock for over the 20 ten consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective Day period commencing on the date immediately after the Record Date for the determination of stockholders entitled to receive such dividend or distribution. If any dividend or distribution described in this Section 9(a)(iv) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. No adjustment to the Conversion Rate pursuant to this Section 9(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on Trading Day next succeeding the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning of Section 9(a)(i).tender or exc
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