Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9. (a) If the Partnership issues Common Units as a distribution to all or substantially all holders of Common Units, or if the Partnership effects a split or combination of Common Units, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 = the number of Common Units outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any distribution of the type described in this Section 9(a) is not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, to the Conversion Rate that would then be in effect if such distribution, split or combination had not been announced. (b) If the Partnership issues to all or substantially all holders of Common Units any rights, warrants, options or other securities entitling them to subscribe for or purchase Common Units, or if the Partnership issues to all holders of Common Units securities convertible into Common Units, in either case at an exercise price per Common Unit or a conversion price per Common Unit less than the volume-weighted average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event;
Appears in 3 contracts
Sources: Class C Preferred Unit Purchase Agreement (Atlas Energy, L.P.), Class C Preferred Unit Purchase Agreement (Atlas Resource Partners, L.P.), Class D Preferred Unit Purchase Agreement (Atlas Pipeline Partners Lp)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9.as follows:
(a) If the Partnership Company issues Common Units Shares as a dividend or distribution on Common Shares to all or substantially all holders of Common UnitsShares, or if the Partnership Company effects a share split or combination of Common Unitsshare combination, the Conversion Rate shall will be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; event CR1 = the new Conversion Rate in effect taking such event into account; account OS0 = the number of Common Units Shares outstanding immediately prior to the effective time of the adjustment relating to such event; and event OS1 = the number of Common Units Shares outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time)event. Any adjustment made pursuant to this Section 9(aclause (a) shall become effective on the date that is immediately after 5:00 p.m., New York City time, (x) the date fixed for the determination of shareholders entitled to receive such dividend or other distribution or (y) the date on the Record Date or the effective date of which such split or combinationcombination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 9(aclause (a) is declared but not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, readjusted to the Conversion Rate that would then be in effect if such distribution, split dividend or combination distribution had not been announceddeclared.
(b) If the Partnership Company issues to all or substantially all holders of Common Units Shares any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common UnitsShares, or if the Partnership Company issues to all holders of Common Units Shares securities convertible into Common UnitsShares for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per Common Unit Share or a conversion price per Common Unit Share less than the volume-weighted average Closing Sale Price of the Closing Prices of Common Units over Shares on the ten consecutive Trading Business Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for time of announcement of such issuance, the Conversion Rate shall will be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; event CR1 = the new Conversion Rate in effect taking such event into account; account OS0 = the number of Common Units Shares outstanding immediately prior to such event X = the total number of Common Shares issuable pursuant to such rights, warrants, options, other securities or convertible securities Y = the number of Common Shares 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 Common Shares for the 10 consecutive Trading Days prior to the Business Day preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities. For purposes of this clause (b), in determining whether any rights, warrants, options, other securities or convertible securities entitle the holders to subscribe for or purchase, or exercise a conversion right for, Common Shares at less than the applicable Closing Sale Price of the Common Shares, and in determining the aggregate exercise or conversion price payable for such Common Shares, there shall be taken into account any consideration received by the 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, if other than cash, to be determined by the Board of Directors of the Company. If any right, warrant, option, other security or convertible security described in this clause (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.
(c) If the Company distributes capital shares, evidences of indebtedness or other assets or property of the Company to all holders of Common Shares, excluding:
(i) dividends, distributions, rights, warrants, options, other securities or convertible securities referred to in clause (a) or (b) above,
(ii) dividends or distributions paid exclusively in cash, and
(iii) Spin-Offs described below in this clause (c), then the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR1 = the new Conversion Rate taking such event into account SP0 = the Closing Sale Price of the Common Shares on the Trading Day preceding the ex-dividend date for such distribution FMV = the fair market value (as determined in good faith by the Board of Directors of the Company) of the capital shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the earlier of the record date or the ex-dividend date for such distribution. An adjustment to the Conversion Rate made pursuant to the immediately preceding clause shall be made successively whenever any such distribution is made and shall become effective on the ex-dividend date for such distribution. If the Company distributes to all holders of Common Shares capital shares of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Company (a “Spin-Off”), the Conversion Rate in effect immediately before the close of business on the date fixed for determination of holders of Common Shares entitled to receive such distribution will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR1 = the new Conversion Rate taking such event into account FMV0 = the average of the Closing Sale Prices of the capital shares or similar equity interest distributed to holders of Common Shares applicable to one Common Share over the first 10 consecutive Trading Days after the effective date of the Spin-Off MP0 = the average of the Closing Sale Prices of the Common Shares over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Conversion Rate made pursuant to the immediately preceding clause will occur on the 10th Trading Day from and including the effective date of the Spin-Off. If any such dividend or distribution described in this clause (c) is declared but not 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.
(d) If the Company pays or makes any cash dividend or distribution in respect of any of its quarterly fiscal periods (without regard to when paid) to all holders of Common Shares in an aggregate amount that, together with other cash dividends or distributions made in respect of such quarterly fiscal period, exceeds the product of $0.02 (the “Reference Dividend”) multiplied by the number of Common Shares outstanding on the record date for such distribution, the Conversion Rate will be adjusted based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR1 = the new Conversion Rate taking such event into account SP0 = the Closing Sale Price of Common Shares on the Trading Day preceding the ex-dividend date for such distribution C = the amount in cash per Common Share that the Company distributes to holders of Common Shares in respect of such quarterly fiscal period that exceeds the Reference Dividend. An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this clause (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. The Reference Dividend shall be subject to adjustment on account of any of the events set forth in clauses (a), (b) and (c) above and clause (e) below. Any such adjustment will be effected by multiplying the Reference Dividend by a fraction, the numerator of which will equal the Conversion Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal the 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 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 a 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: where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR1 = the new Conversion Rate taking such event into account 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 Common Shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires OS1 = the number of Common Shares 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) SP1 = the average of the Closing Sale Prices of Common Shares 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 clause (e) shall become effective on the date immediately following the determination of the average of the Closing Sale Prices of Common Shares for purposes of SP1 above. If the Company or one of its subsidiaries is obligated to purchase Common Shares 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) [RESERVED]
(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 is required to deliver Common Shares, in addition to such Common Shares, rights under the Company’s shareholder rights agreement unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Shares. If the rights provided for in the rights plan adopted by the Company have separated from the Common Shares in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of Common Shares, if any, that the Company is required to deliver 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 Common Shares capital shares, evidences of indebtedness or other assets or property pursuant to clause (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In addition to the adjustments pursuant to clauses (a) through (g) above, the Company may increase the Conversion Rate in order to avoid or diminish any income tax to holders of Common Shares resulting from any dividend or distribution of capital shares (or rights to acquire Common Shares) 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 the 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, the Company may set off any withholding tax it reasonably believes it is required to collect with respect to any such deemed distribution against cash payments of interest in accordance with the provisions of Section 2.05 hereof or from cash and Common Shares, 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 transactions described above. Notwithstanding anything to the contrary contained herein, in addition to the other events set forth herein on account of which no adjustment to the Conversion Rate shall be made, the applicable Conversion Rate shall not be adjusted for:
(i) the issuance of any Common Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in Common Shares under any plan;
(ii) the issuance of any Common Shares or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan, employee agreement or arrangement or program of the Company;
(iii) the issuance of any Common Shares pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the date the Notes were first issued;
(iv) a change in the par value of the Common Shares;
(v) accumulated and unpaid dividends or distributions; and
(vi) as a result of a tender offer solely to holders of fewer than 100 Common Shares. Adjustments to the applicable Conversion Rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the Conversion Rate shall be required unless the adjustment relating would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. Notwithstanding the foregoing, all adjustments not previously made will be given effect with respect to any conversion of Notes. Whenever the Conversion Rate is adjusted as herein provided, the Company shall, as promptly as reasonably practicable, file with the Trustee and any Conversion Agent other than the Trustee, an Officers’ Certificate setting forth the Conversion Rate after such event;adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the 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 Holders of the Notes within 20 Business Days of the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. For purposes of this Section 2.14, the number of Common Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of Common Shares. Notwithstanding anything in this Section 2.14 to the contrary, in no event shall the Conversion Rate be adjusted so that the
Appears in 2 contracts
Sources: Supplemental Indenture (Developers Diversified Realty Corp), Twelfth Supplemental Indenture (Developers Diversified Realty 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 Partnership in accordance with the provisions of this Section 9.Corporation as follows:
(ai) If the Partnership Corporation issues shares of Voting Common Units Stock as a dividend or distribution to all or substantially all holders on shares of Voting Common UnitsStock, or if the Partnership effects a share split or share combination of Common Unitsis effected, the Conversion Rate shall will be adjusted based on the following formula: CR1 CR 1 = CR0 × OS1 / OS0 CR O times OS 1 divided by OS O where, CR0 CR O = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 event CR 1 = the new Conversion Rate in effect taking immediately after such event into account; OS0 OS O = the number of shares of Voting Common Units Stock outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 event OS 1 = the number of shares of Voting Common Units Stock outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any An adjustment made pursuant to this Section 9(a9(a)(i) shall become effective on the date immediately after 5:00 p.m., New York City time, (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or (y) the date on the Record Date or the effective date of which such split or combinationcombination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 9(a9(a)(i) is declared but not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall again be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, adjusted to the Conversion Rate that would then be in effect if such distribution, split dividend or combination distribution had not been announceddeclared.
(bii) If the Partnership Corporation issues to all or substantially all holders of Voting Common Units 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 UnitsStock, or if the Partnership issues to all holders of Common Units securities convertible into shares of Voting Common UnitsStock within 20 days after the issuance thereof, in either case at an exercise price per Common Unit share or a conversion price per Common Unit share less than the volume-weighted average Closing Sale Price of shares of the Closing Prices of Voting Common Units over Stock on the ten consecutive Trading Day period ending on, and including, the Trading Day business day immediately preceding the Ex-distribution Date for 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: CR1 CR 1 = CR0 × CR O times SP O divided by (OS0 + X) / (OS0 + YSP O -FMV) where, CR0 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 adjustment relating to record date for such event; CR1 distribution CR 1 = the new Conversion Rate in effect taking immediately after the record date for such event into account; OS0 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 Units outstanding immediately prior to Stock in which the effective time shares of the adjustment relating Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such event;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. The Conversion Rate shall be adjusted from time to time by the Partnership 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 accordance with the provisions of this Section 9transaction described without having to convert their Securities.
(a) If the Partnership issues Common Units as Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for 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 stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors 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.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the 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 13.4(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 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a "Spin-Off"), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities 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 Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities 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 fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities 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 Common Units, or if the Partnership effects a split or combination of Common UnitsShares, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to on the adjustment relating to Record Date for such event; CR1 distribution CR' = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 = the number of Common Units outstanding immediately after the effective time Record Date for such distribution SP0 = the Current Market Price of one of the 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 relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or the effective date of distribution; provided that if such split dividend or combination, as applicable. If any distribution of the type described in this Section 9(a) is not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall again be immediately readjusted, effective as of the date the General Partner determines not adjusted to pay such distribution or to effect such split or combination, to be the Conversion Rate that would then be in effect if such distribution, split dividend or combination distribution had not been announceddeclared.
(be) If the Partnership issues Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to all or substantially all holders the extent that the cash and value of Common Units any rights, warrants, options or other securities entitling them to subscribe for or purchase Common Units, or if consideration included in the Partnership issues to all holders of Common Units securities convertible into Common Units, in either case at an exercise price payment per Common Unit or a conversion price Share exceeds the Current Market Price per Common Unit less than the volume-weighted average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, Share on the Trading Day immediately preceding the Ex-distribution Date for date such issuancetender offer or exchange offer is announced, the Conversion Rate shall be adjusted increased based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to on the adjustment relating to date such event; CR1 tender or exchange offer expires CR' = the new Conversion Rate in effect taking on the day next succeeding the date such event into account; 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 Units Shares outstanding on the Trading Day immediately prior 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 preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the effective time 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 tender or exchange had not been made.
(f) For purposes of this Section 13.4, the adjustment relating to such event;following terms shall have the meaning indicated:
Appears in 2 contracts
Sources: Indenture (Minefinders Corp Ltd.), Indenture (Minefinders Corp Ltd.)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9.
(a) If the Partnership issues Common Units as a distribution to all or substantially all holders of Common Units, or if the Partnership effects a split or combination of Common Units, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 = the number of Common Units outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any distribution of the type described in this Section 9(a) is not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, to the Conversion Rate that would then be in effect if such distribution, split or combination had not been announced.
(b) If the Partnership issues to all or substantially all holders of Common Units any rights, warrants, options or other securities entitling them (for a period of not more than 45 calendar days after the date fixed for the determination of the holders of Common Units entitled to receive such rights, warrants, options or other securities) to subscribe for or purchase Common Units, or if the Partnership issues to all holders of Common Units securities convertible into Common UnitsUnits (for a period of not more than 45 calendar days after the date fixed for the determination of the holders of Common Units entitled to receive such convertible securities), in either case at an exercise price per Common Unit or a conversion price per Common Unit less than the volume-weighted average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event;; X = the total number of Common Units issuable pursuant to such rights, warrants, options, convertible securities or other securities; and Y = the number of Common Units equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, convertible securities or other securities and (B) the average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance. Any adjustment made pursuant to this Section 9(b) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date. For purposes of this Section 9(b), in determining whether any rights, warrants, options, convertible securities or other securities entitle the holders of Common Units to subscribe for or purchase, or exercise a conversion right for, Common Units at less than the applicable average of the Closing Prices of Common Units, and in determining the aggregate exercise or conversion price payable for such Common Units, there shall be taken into account any consideration the Partnership receives for such rights, warrants, options, convertible securities or other 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 General Partner in good faith. If any rights, warrants, options, convertible securities or other securities described in this Section 9(b) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the General Partner publicly announces its decision not to issue such rights, warrants, options, convertible securities or other securities, to the Conversion Rate that would then be in effect without such issuance. If any rights, warrants, options, convertible securities or other securities described in this Section 9(b) are 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 the adjustments made upon the issuance of such right, warrant, option, convertible security or other securities had been made on the basis of the delivery of only the number of Common Units actually delivered.
(i) If the Partnership distributes evidences of its indebtedness or its other assets or property to all or substantially all holders of Common Units, excluding:
(A) distributions, rights, warrants, options, convertible securities or other securities as to which an adjustment was effected pursuant to Section 9(a) or (b) hereof,
(B) distributions paid exclusively in cash, and
(C) Spin-offs described in this Section 9(c), then the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × ▇▇▇ / (▇▇▇ – FMV) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; SP0 = the average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-distribution Date for such distribution; and FMV = the Fair Market Value (as determined by the General Partner in good faith) of the evidences of indebtedness, assets or property distributed with respect to each outstanding Common Unit as of the Ex-distribution Date for such distribution. An adjustment to the Conversion Rate made pursuant to this Section 9(c)(i) shall be made successively whenever any such distribution is made and shall become effective immediately after 5:00 p.m., New York City time, on the Record Date.
(ii) If the Partnership distributes, to all holders of Common Units, common units of any class or series or any similar equity interest of or relating to a Subsidiary or other business unit of the Partnership, and such units or equity interests are listed for trading on a U.S. national securities exchange (a “Spin-off”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (FMV0 + MP0) / MP0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; FMV0 = the average of the Closing Prices of the equity interest distributed to holders of Common Units applicable to one Common Unit over the first ten consecutive Trading Day period commencing on, and including, the Trading Day following the effective date of such Spin-off (such period, the “Valuation Period”); and MP0 = the average of the Closing Prices of Common Units over the Valuation Period. If the application of the foregoing formula would result in a decrease in a fixed conversion rate, no adjustment to the Conversion Rate shall be made. An adjustment to the Conversion Rate made pursuant to this Section 9(c)(ii) shall occur on the final Trading Day of the Valuation Period; provided, that in respect of any conversion of Preferred Units within the ten consecutive Trading Days immediately following the date of the Spin-off, references with respect to the Spin-off to “ten 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 Mandatory Conversion Date or Optional Conversion Date, as applicable, in determining the Conversion Rate.
(iii) If any such distribution or distribution described in this Section 9(c) is not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the General Partner publicly announces its decision not to pay such distribution or distribution, to the Conversion Rate that would then be in effect without such distribution or distribution.
(d) If the Partnership or any Subsidiary makes a payment in respect of a tender or exchange offer for Common Units (other than a tender offer solely to holders of fewer than 100 Common Units), to the extent that the cash and value of any other consideration included in the payment per Common Unit exceeds the average of the Closing Prices of Common Units over the ten consecutive Trading Day period commencing 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 Date”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (AC + (SP1 × OS1)) / (SP1 × OS0) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; AC = the Fair Market Value (as determined by the General Partner in good faith), on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for units accepted for purchase or exchange in such tender or exchange offer; OS0 = the number of Common Units outstanding immediately prior to the Expiration Date (prior to giving effect to such tender offer or exchange offer); OS1 = the number of Common Units outstanding immediately after the Expiration Date (after giving effect to such tender offer or exchange offer); and SP1 = the average of the Closing Prices of Common Units over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the Expiration Date (such period, the “Tender Offer Valuation Period”). 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 Section 9(d) shall become effective immediately after 5:00 p.m., New York City time, on the final Trading Day of the Tender Offer Valuation Period; provided, that in respect of any conversion within the ten consecutive Trading Days next succeeding the Expiration Date, references with respect to “ten consecutive Trading Day period” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Expiration Date and the Mandatory Conversion Date, Optional Conversion Date or Reorganization Event Conversion Date, as applicable, in determining the Conversion Rate. If the Partnership or one of its Subsidiaries is obligated to purchase Common Units pursuant to any such tender or exchange offer, but the Partnership, or such Subsidiary, is permanently prevented by applicable law from effecting any such purchase, or all such purchases are rescinded, then the new Conversation Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(e) Notwithstanding the provisions of this Section 9, no adjustment to the Conversion Rate shall be made if Holders may participate in the transaction that would otherwise give rise to such adjustment on an as-converted basis and without converting their Preferred Units.
(f) Notwithstanding the provisions of this Section 9, no adjustment to the Conversion Rate need be made if the Common Units to be issued upon conversion will actually receive the consideration provided in, or be subject to, the transaction or event that would otherwise trigger the adjustment.
(g) No adjustment to the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) of the Conversion Rate then in effect; provided, that any adjustments that by reason of this Section 9(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 9 shall be made by the Partnership and shall be made to the nearest cent or to the nearest one-ten thousandth ( 1/10,000th) of a unit, as the case may be. Notwithstanding the foregoing, all adjustments not previously made shall have effect with respect to any conversion of Preferred Units.
(h) To the fullest extent permitted by law, the Partnership may (but is not required to) make such increases in the Conversion Rate, in addition to those required by this Section 9, as the General Partner considers to be advisable to avoid or diminish any income tax to holders of Common Units or rights to purchase Common Units resulting from any distribution or distribution of Common Units (or rights or warrants to acquire Common Unit) or from any event treated as such for income tax purposes. To the fullest extent permitted by applicable law, the Partnership from time to time may (but is not required to) increase the Conversion Rate by any amount for any period of time if the period is at least 20 days and the increase is irrevocable during the period and the General Partner determines in good faith that such increase would be in the best interest of the Partnership, which determination shall be conclusive.
(i) If the Partnership shall be required to withhold taxes on constructive distributions to a Holder and the Partnership pays the applicable withholding taxes, the Partnership may, at its option, set off any such payment against cash, Common Units or other assets distributable or payable to such Holder.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Partnership shall promptly file with the Conversion Agent an Officer’s certificate setting forth the Conversion Rate after such adjustment and a brief statement setting forth in reasonable detail the method by which the adjustment to the Conversion Rate was determined. Unless and until a responsible officer of the Conversion Agent shall have received such Officer’s certificate, the Conversion Agent shall not be deemed to have knowledge of any adjustment of the Conversion Rates and may assume that the last Conversion Rates of which it has knowledge are still in effect. Promptly after delivery of such certificate, the Partnership shall prepare a notice of such adjustment of Conversion Rates setting forth the adjusted Conversion Rates and the date on which each adjustment becomes effective and shall promptly mail such notice of adjustment of the Conversion Rate to each Holder at its last address appearing in the Unit register. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
Appears in 1 contract
Sources: Class D Preferred Unit Purchase Agreement (Atlas Pipeline Partners Lp)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9.
(a) If the Partnership issues Common Units as a distribution to all or substantially all holders of Common Units, or if the Partnership effects a split or combination of Common Units, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 = the number of Common Units outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any distribution of the type described in this Section 9(a) is not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, to the Conversion Rate that would then be in effect if such distribution, split or combination had not been announced.
(b) If the Partnership issues to all or substantially all holders of Common Units any rights, warrants, options or other securities entitling them to subscribe for or purchase Common Units, or if the Partnership issues to all holders of Common Units securities convertible into Common Units, in either case at an exercise price per Common Unit or a conversion price per Common Unit less than the volume-weighted average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event;; X = the total number of Common Units issuable pursuant to such rights, warrants, options, convertible securities or other securities; and Y = the number of Common Units equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, convertible securities or other securities and (B) the average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance. Any adjustment made pursuant to this Section 9(b) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date. For purposes of this Section 9(b), in determining whether any rights, warrants, options, convertible securities or other securities entitle the holders of Common Units to subscribe for or purchase, or exercise a conversion right for, Common Units at less than the applicable average of the Closing Prices of Common Units, and in determining the aggregate exercise or conversion price payable for such Common Units, there shall be taken into account any consideration the Partnership receives for such rights, warrants, options, convertible securities or other 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 General Partner in good faith. If any rights, warrants, options, convertible securities or other securities described in this Section 9(b) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the General Partner publicly announces its decision not to issue such rights, warrants, options, convertible securities or other securities, to the Conversion Rate that would then be in effect without such issuance. If any rights, warrants, options, convertible securities or other securities described in this Section 9(b) are 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 the adjustments made upon the issuance of such right, warrant, option, convertible security or other securities had been made on the basis of the delivery of only the number of Common Units actually delivered.
(i) If the Partnership distributes evidences of its indebtedness or its other assets or property to all or substantially all holders of Common Units, excluding:
(A) distributions, rights, warrants, options, convertible securities or other securities as to which an adjustment was effected pursuant to Section 9(a) or (b) hereof,
(B) distributions paid exclusively in cash, and
(C) Spin-offs described in this Section 9(c), then the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × ▇▇▇ / (▇▇▇ – FMV) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; SP0 = the average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-distribution Date for such distribution; and FMV = the Fair Market Value (as determined by the General Partner in good faith) of the evidences of indebtedness, assets or property distributed with respect to each outstanding Common Unit as of the Ex-distribution Date for such distribution. An adjustment to the Conversion Rate made pursuant to this Section 9(c)(i) shall be made successively whenever any such distribution is made and shall become effective immediately after 5:00 p.m., New York City time, on the Record Date.
(ii) If the Partnership distributes, to all holders of Common Units, common units of any class or series or any similar equity interest of or relating to a Subsidiary or other business unit of the Partnership, and such units or equity interests are listed for trading on a U.S. national securities exchange (a “Spin-off”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (FMV0 + MP0) / MP0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; FMV0 = the average of the Closing Prices of the equity interest distributed to holders of Common Units applicable to one Common Unit over the first ten consecutive Trading Day period commencing on, and including, the Trading Day following the effective date of such Spin-off (such period, the “Valuation Period”); and MP0 = the average of the Closing Prices of Common Units over the Valuation Period. If the application of the foregoing formula would result in a decrease in a fixed conversion rate, no adjustment to the Conversion Rate shall be made. An adjustment to the Conversion Rate made pursuant to this Section 9(c)(ii) shall occur on the final Trading Day of the Valuation Period; provided, that in respect of any conversion of Preferred Units within the ten consecutive Trading Days immediately following the date of the Spin-off, references with respect to the Spin-off to “ten 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 Mandatory Conversion Date or Optional Conversion Date, as applicable, in determining the Conversion Rate.
(iii) If any such distribution or distribution described in this Section 9(c) is not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the General Partner publicly announces its decision not to pay such distribution or distribution, to the Conversion Rate that would then be in effect without such distribution or distribution.
(d) If the Partnership or any Subsidiary makes a payment in respect of a tender or exchange offer for Common Units (other than a tender offer solely to holders of fewer than 100 Common Units), to the extent that the cash and value of any other consideration included in the payment per Common Unit exceeds the average of the Closing Prices of Common Units over the ten consecutive Trading Day period commencing 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 Date”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (AC + (SP1 × OS1)) / (SP1 × OS0) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; AC = the Fair Market Value (as determined by the General Partner in good faith), on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for units accepted for purchase or exchange in such tender or exchange offer; OS0 = the number of Common Units outstanding immediately prior to the Expiration Date (prior to giving effect to such tender offer or exchange offer); OS1 = the number of Common Units outstanding immediately after the Expiration Date (after giving effect to such tender offer or exchange offer); and SP1 = the average of the Closing Prices of Common Units over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the Expiration Date (such period, the “Tender Offer Valuation Period”). 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 Section 9(d) shall become effective immediately after 5:00 p.m., New York City time, on the final Trading Day of the Tender Offer Valuation Period; provided, that in respect of any conversion within the ten consecutive Trading Days next succeeding the Expiration Date, references with respect to “ten consecutive Trading Day period” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Expiration Date and the Mandatory Conversion Date, Optional Conversion Date or Reorganization Event Conversion Date, as applicable, in determining the Conversion Rate. If the Partnership or one of its Subsidiaries is obligated to purchase Common Units pursuant to any such tender or exchange offer, but the Partnership, or such Subsidiary, is permanently prevented by applicable law from effecting any such purchase, or all such purchases are rescinded, then the new Conversation Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(e) Notwithstanding the provisions of this Section 9, no adjustment to the Conversion Rate shall be made if Holders may participate in the transaction that would otherwise give rise to such adjustment on an as-converted basis and without converting their Preferred Units.
(f) Notwithstanding the provisions of this Section 9, no adjustment to the Conversion Rate need be made if the Common Units to be issued upon conversion will actually receive the consideration provided in, or be subject to, the transaction or event that would otherwise trigger the adjustment.
(g) No adjustment to the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) of the Conversion Rate then in effect; provided, that any adjustments that by reason of this Section 9(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 9 shall be made by the Partnership and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000th) of a unit, as the case may be. Notwithstanding the foregoing, all adjustments not previously made shall have effect with respect to any conversion of Preferred Units.
(h) To the fullest extent permitted by law, the Partnership may (but is not required to) make such increases in the Conversion Rate, in addition to those required by this Section 9, as the General Partner considers to be advisable to avoid or diminish any income tax to holders of Common Units or rights to purchase Common Units resulting from any distribution or distribution of Common Units (or rights or warrants to acquire Common Unit) or from any event treated as such for income tax purposes. To the fullest extent permitted by applicable law, the Partnership from time to time may (but is not required to) increase the Conversion Rate by any amount for any period of time if the period is at least 20 days and the increase is irrevocable during the period and the General Partner determines in good faith that such increase would be in the best interest of the Partnership, which determination shall be conclusive.
(i) If the Partnership shall be required to withhold taxes on constructive distributions to a Holder and the Partnership pays the applicable withholding taxes, the Partnership may, at its option, set off any such payment against cash, Common Units or other assets distributable or payable to such Holder.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Partnership shall promptly file with the Conversion Agent an Officer’s certificate setting forth the Conversion Rate after such adjustment and a brief statement setting forth in reasonable detail the method by which the adjustment to the Conversion Rate was determined. Unless and until a responsible officer of the Conversion Agent shall have received such Officer’s certificate, the Conversion Agent shall not be deemed to have knowledge of any adjustment of the Conversion Rates and may assume that the last Conversion Rates of which it has knowledge are still in effect. Promptly after delivery of such certificate, the Partnership shall prepare a notice of such adjustment of Conversion Rates setting forth the adjusted Conversion Rates and the date on which each adjustment becomes effective and shall promptly mail such notice of adjustment of the Conversion Rate to each Holder at its last address appearing in the Unit register. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
Appears in 1 contract
Conversion Rate Adjustments. (a) The applicable Conversion Rate shall be adjusted from time to time by the Partnership 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 accordance with any of the provisions transactions described below as if such Holders held a number of this Section 9ADSs 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 a distribution of assets that are held by the ADS depositary at the time of conversion of such Notes into ADSs.
(ai) If the Partnership Issuer issues Common Units solely Ordinary Shares as a dividend or any other distribution to (including by recapitalization of retained earnings) on all or substantially all holders of Common UnitsOrdinary Shares, or if the Partnership Issuer effects a share split or share combination of Common Unitsits Ordinary Shares, the applicable Conversion Rate shall will be adjusted based on the following formula: CR1 CR = CR0 × OS1 / OS OS0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the adjustment relating open of business on the Business Day immediately following (x) the date fixed for the determination of holders of Ordinary Shares entitled to receive such eventdividend or distribution or (y) the date on which such split or combination becomes effective, as applicable (such date specified in clause (x) or (y), the “Dividend Record Date”); CR1 CR = the new applicable Conversion Rate in effect taking such event into accountimmediately after the open of business on the Business Day immediately following the Dividend Record Date; OS0 = the number of Common Units Ordinary Shares outstanding immediately prior to the effective time open of business on the adjustment relating to such eventDividend Record Date; and OS1 OS = the number of Common Units Ordinary Shares that would have been outstanding immediately after prior to the effective time open of business on the adjustment relating Dividend Record Date as adjusted to take into account such event (giving effect to such dividend, distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any dividend or distribution of the type described in this Section 9(aclause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or the outstanding Common Units Ordinary Shares are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the General Partner Issuer’s shareholders’ meeting or Board of Directors determines not to pay such distribution dividend or distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to effect have been paid, or (in the case of a stock split or combination) the date on which such split or combinationcombination was to have been effective, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared or announced.
(bii) If the Partnership issues Issuer distributes to all or substantially all holders of Common Units Ordinary Shares any rights, warrantsoptions, options warrants or other securities entitling them for a period of not more than 45 calendar days from the record date for such distribution to subscribe for or purchase Common UnitsOrdinary Shares (or securities convertible into Ordinary Shares), at a price per Ordinary Share (or conversion price per Ordinary Share) less than the average of the Last Reported Sale Prices of the Ordinary Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution, the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × (OS0 + X) (OS0 + Y) where, 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 rights, options, warrants or other securities (such date, the “Rights Distribution Record Date”); CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Rights Distribution Record Date; OS0 = the number of Ordinary Shares outstanding immediately prior to the open of business on the Rights Distribution Record Date; X = the total number of Ordinary Shares issuable pursuant to such rights, options, warrants or other securities; and Y = the number of Ordinary Shares equal to the aggregate price payable to exercise such rights, options, warrants or other securities divided by the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading 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 Partnership issues 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, options, warrants or other securities been made on the basis of delivery of only the number of Ordinary Shares actually delivered. For purposes of this clause (ii), in determining whether any rights, options, warrants or other securities entitle the holders to subscribe for or purchase Ordinary Shares at less than the average of the Last Reported Sale Prices of Ordinary Shares for each Trading Day in the applicable 10 consecutive Trading Day Period, there shall be taken into account any consideration the Issuer receives for such rights, options, warrants or other securities and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined by the Issuer’s Board of Directors.
(iii) If the Issuer distributes shares of its Capital Stock, evidences of its Indebtedness, other assets or property or rights or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Common Units Ordinary Shares, excluding
(A) dividends or distributions and rights, options, warrants and other securities convertible into Common Unitsdescribed in clause (i) or (ii) above or clause (v) below;
(B) dividends or distributions paid exclusively in cash, including as described in either case at an exercise price per Common Unit clause (iv) below;
(C) dividends or distributions effected pursuant to a conversion price per Common Unit less than 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
(D) Spin-Offs to which the volume-weighted provisions set forth below in this clause (iii) shall apply; then the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ - FMV) 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 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 Common Units Ordinary Shares over the ten 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Dividend Date for such issuancedistribution; and FMV = the fair market value (as determined by the Issuer’s Board of Directors or a committee thereof) of the shares of Capital Stock, evidences of Indebtedness, assets, property, rights or warrants distributed with respect to each outstanding Ordinary Share as of 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; provided further that if the Issuer’s Board of Directors determines “FMV” for purposes of the foregoing adjustment by reference to the trading market for any securities, it must in doing so consider the prices in such 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 Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this clause (iii) where there has been a payment of a dividend or other distribution on the Ordinary Shares or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate shall will be adjusted based on the following formula: CR1 CR = CR0 × (OS0 FMV + XMP0) / (OS0 + Y) MP0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the adjustment relating to such eventopening of business on the Business Day immediately following the record date for the Spin-Off; CR1 CR = the new applicable Conversion Rate in effect taking immediately after the opening of business on the Business Day immediately following such event into accountrecord date; FMV = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Ordinary Shares applicable to one Ordinary Share over the first 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 shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off 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 Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the 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 dividend or distribution results in an adjustment to the Conversion Rate under the preceding paragraph and such dividend or distribution is 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.
(v) If (A) the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the 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 such tender or exchange offer (the “Expiration Date”), the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × AC + (SP x OS) (SP x OS0) where, CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day next succeeding the Expiration Date; CR = the applicable Conversion Rate in effect immediately after the 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 tender or exchange offer; OS0 = the number of Common Units Ordinary Shares outstanding immediately prior to the effective 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 = 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 Expiration Date. The adjustment relating to 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 be deemed replaced with such event;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 be in effect if such tender or exchange offer had not been 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 under this Section 12.05(a) cannot be made at such time because the facts required for such determination cannot be ascertained, the Issuer will make such determination as soon as practicable upon such information becoming determinate, and such adjustment will be 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 more than one of such clauses, the Issuer shall, in good faith, determine the adjustment to be made, including, if applicable, the order of the adjustments.
(b) The Issuer may at its option and in addition to the adjustments required by Section 12.05(a), increase the applicable Conversion Rate to avoid or diminish income Tax to hol
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9.
(a) If the Partnership issues Common Units as a distribution to all or substantially all holders of Common Units, or if the Partnership effects a split or combination of Common Units, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 = the number of Common Units outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any distribution of the type described in this Section 9(a9 (a) is not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, to the Conversion Rate that would then be in effect if such distribution, split or combination had not been announced.
(b) If the Partnership issues to all or substantially all holders of Common Units any rights, warrants, options or other securities entitling them to subscribe for or purchase Common Units, or if the Partnership issues to all holders of Common Units securities convertible into Common Units, in either case at an exercise price per Common Unit or a conversion price per Common Unit less than the volume-volume- weighted average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event;; X = the total number of Common Units issuable pursuant to such rights, warrants, options, convertible securities or other securities; and Y = the number of Common Units equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, convertible securities or other securities and (B) the average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance. Any adjustment made pursuant to this Section 9(b) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date. For purposes of this Section 9(b), in determining whether any rights, warrants, options, convertible securities or other securities entitle the holders of Common Units to subscribe for or purchase, or exercise a conversion right for, Common Units at less than the applicable average of the Closing Prices of Common Units, and in determining the aggregate exercise or conversion price payable for such Common Units, there shall be taken into account any consideration the Partnership receives for such rights, warrants, options, convertible securities or other 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 General Partner in good faith. If any rights, warrants, options, convertible securities or other securities described in this Section 9(b) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the General Partner publicly announces its decision not to issue such rights, warrants, options, convertible securities or other securities, to the Conversion Rate that would then be in effect without such issuance. If any rights, warrants, options, convertible securities or other securities described in this Section 9(b) are 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 the adjustments made upon the issuance of such right, warrant, option, convertible security or other securities had been made on the basis of the delivery of only the number of Common Units actually delivered.
(i) If the Partnership distributes evidences of its indebtedness or its other assets or property to all or substantially all holders of Common Units, excluding:
(A) distributions, rights, warrants, options, convertible securities or other securities as to which an adjustment was effected pursuant to Section 9(a) or (b) hereof,
(B) distributions paid exclusively in cash, and
(C) Spin-offs described in this Section 9(c), then the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × ▇▇▇ / (▇▇▇ – FMV) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; SP0 = the average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-distribution Date for such distribution; and FMV = the Fair Market Value (as determined by the General Partner in good faith) of the evidences of indebtedness, assets or property distributed with respect to each outstanding Common Unit as of the Ex-distribution Date for such distribution. An adjustment to the Conversion Rate made pursuant to this Section 9(c)(i) shall be made successively whenever any such distribution is made and shall become effective immediately after 5:00 p.m., New York City time, on the Record Date.
(ii) If the Partnership distributes, to all holders of Common Units, common units of any class or series or any similar equity interest of or relating to a Subsidiary or other business unit of the Partnership, and such units or equity interests are listed for trading on a U.S. national securities exchange (a “Spin-off”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (FMV0 + MP0) / MP0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; FMV0 = the average of the Closing Prices of the equity interest distributed to holders of Common Units applicable to one Common Unit over the first ten consecutive Trading Day period commencing on, and including, the Trading Day following the effective date of such Spin-off (such period, the “Valuation Period”); and MP0 = the average of the Closing Prices of Common Units over the Valuation Period. If the application of the foregoing formula would result in a decrease in a fixed conversion rate, no adjustment to the Conversion Rate shall be made. An adjustment to the Conversion Rate made pursuant to this Section 9(c)(ii) shall occur on the final Trading Day of the Valuation Period; provided, that in respect of any conversion of Preferred Units within the ten consecutive Trading Days immediately following the date of the Spin-off, references with respect to the Spin-off to “ten 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 Mandatory Conversion Date or Optional Conversion Date, as applicable, in determining the Conversion Rate.
(iii) If any such distribution or distribution described in this Section 9(c) is not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the General Partner publicly announces its decision not to pay such distribution or distribution, to the Conversion Rate that would then be in effect without such distribution or distribution.
(d) If the Partnership or any Subsidiary makes a payment in respect of a tender or exchange offer for Common Units (other than a tender offer solely to holders of fewer than 100 Common Units), to the extent that the cash and value of any other consideration included in the payment per Common Unit exceeds the average of the Closing Prices of Common Units over the ten consecutive Trading Day period commencing 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 Date”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (AC + (SP1 × OS1)) / (SP1 × OS0) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate taking such event into account; AC = the Fair Market Value (as determined by the General Partner in good faith), on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for units accepted for purchase or exchange in such tender or exchange offer; OS0 = the number of Common Units outstanding immediately prior to the Expiration Date (prior to giving effect to such tender offer or exchange offer); OS1 = the number of Common Units outstanding immediately after the Expiration Date (after giving effect to such tender offer or exchange offer); and SP1 = the average of the Closing Prices of Common Units over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the Expiration Date (such period, the “Tender Offer Valuation Period”). 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 Section 9(d) shall become effective immediately after 5:00 p.m., New York City time, on the final Trading Day of the Tender Offer Valuation Period; provided, that in respect of any conversion within the ten consecutive Trading Days next succeeding the Expiration Date, references with respect to “ten consecutive Trading Day period” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Expiration Date and the Mandatory Conversion Date, Optional Conversion Date or Reorganization Event Conversion Date, as applicable, in determining the Conversion Rate. If the Partnership or one of its Subsidiaries is obligated to purchase Common Units pursuant to any such tender or exchange offer, but the Partnership, or such Subsidiary, is permanently prevented by applicable law from effecting any such purchase, or all such purchases are rescinded, then the new Conversation Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(e) Notwithstanding the provisions of this Section 9, no adjustment to the Conversion Rate shall be made if Holders may participate in the transaction that would otherwise give rise to such adjustment on an as-converted basis and without converting their Preferred Units.
(f) Notwithstanding the provisions of this Section 9, no adjustment to the Conversion Rate need be made if the Common Units to be issued upon conversion will actually receive the consideration provided in, or be subject to, the transaction or event that would otherwise trigger the adjustment.
(g) No adjustment to the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) of the Conversion Rate then in effect; provided, that any adjustments that by reason of this Section 9(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 9 shall be made by the Partnership and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000th) of a unit, as the case may be. Notwithstanding the foregoing, all adjustments not previously made shall have effect with respect to any conversion of Preferred Units.
(h) To the fullest extent permitted by law, the Partnership may (but is not required to) make such increases in the Conversion Rate, in addition to those required by this Section 9, as the General Partner considers to be advisable to avoid or diminish any income tax to holders of Common Units or rights to purchase Common Units resulting from any distribution or distribution of Common Units (or rights or warrants to acquire Common Unit) or from any event treated as such for income tax purposes. To the fullest extent permitted by applicable law, the Partnership from time to time may (but is not required to) increase the Conversion Rate by any amount for any period of time if the period is at least 20 days and the increase is irrevocable during the period and the General Partner determines in good faith that such increase would be in the best interest of the Partnership, which determination shall be conclusive.
(i) If the Partnership shall be required to withhold taxes on constructive distributions to a Holder and the Partnership pays the applicable withholding taxes, the Partnership may, at its option, set off any such payment against cash, Common Units or other assets distributable or payable to such Holder.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Partnership shall promptly file with the Conversion Agent an Officer’s certificate setting forth the Conversion Rate after such adjustment and a brief statement setting forth in reasonable detail the method by which the adjustment to the Conversion Rate was determined. Unless and until a responsible officer of the Conversion Agent shall have received such Officer’s certificate, the Conversion Agent shall not be deemed to have knowledge of any adjustment of the Conversion Rates and may assume that the last Conversion Rates of which it has knowledge are still in effect. Promptly after delivery of such certificate, the Partnership shall prepare a notice of such adjustment of Conversion Rates setting forth the adjusted Conversion Rates and the date on which each adjustment becomes effective and shall promptly mail such notice of adjustment of the Conversion Rate to each Holder at its last address appearing in the Unit register. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
Appears in 1 contract
Sources: Amendment No. 10 to Second Amended and Restated Agreement of Limited Partnership
Conversion Rate Adjustments. The Partnership shall adjust the Series C Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9.as follows:
(ai) If the Partnership issues Common Units as a distribution to all or substantially all holders of Common Units, or if the Partnership effects a unit split or combination of Common Unitsunit combination, the Series C Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × x OS1 / OS0 where, where CR0 = the applicable Series C Conversion Rate in effect immediately prior to open of business on the adjustment relating ex-dividend date for such distribution, or immediately prior to open of business on the effective date of such eventunit split or unit combination, as applicable; CR1 = the new Series C Conversion Rate in effect taking immediately after open of business on the ex-dividend date for such event into accountdistribution, or immediately after open of business on the effective date of such unit split or unit combination; OS1 = the number of Common Units outstanding immediately after, and solely as a result of, such distribution, unit split or unit combination; and OS0 = the number of Common Units outstanding immediately prior to open of business on the ex-dividend date for such distribution, or prior to open of business on the effective time date of the adjustment relating such unit split or unit combination (and prior to such event; and OS1 = the number of Common Units outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective timeevent). Any adjustment made pursuant to this Section 9(aclause (i) shall become effective (x) immediately after 5:00 p.m., New York City time, the open of business on the Record Date ex-dividend date for such distribution or (y) immediately after the open of business on the effective date of such unit split or unit combination, as applicablethe case may be. If any distribution of the type distribution, split or combination described in this Section 9(aclause (i) is declared but not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Series C Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, readjusted to the Series C Conversion Rate that would then be in effect if such distribution, split or combination had not been announceddeclared. For purposes of this clause (i), the number of Common Units outstanding at the open of business on the ex-dividend date for such distribution shall not include Common Units held in treasury. The Partnership shall not pay any distribution on Common Units held in treasury.
(bii) If the Partnership issues to all or substantially all holders of Common Units any rights, warrantswarrants or options (other than rights, options or other securities warrants issued pursuant to a distribution reinvestment plan or unit purchase plan or similar plans) entitling them them, for a period expiring not more than 60 days after the date of issuance of such rights, warrants or options, to subscribe for or purchase Common Units, or if the Partnership issues to all holders of Common Units securities convertible into Common Units, in either case at an exercise a price per Common Unit or a conversion price that is less than the average Closing Sale Price per Common Unit less than for the volume-weighted average of the Closing Prices of Common Units over the ten 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date date of announcement for such issuance, the Partnership will adjust the Series C Conversion Rate based on the following formula: CR1 = CR0 x OS0+X OS0+Y where CR0 = the applicable Series C Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such issuance; CR1 = the new applicable Series C Conversion Rate in effect immediately after the open of business on the ex-dividend date for such issuance; OS0 = the number of Common Units outstanding immediately prior to the open of business on the ex-dividend date for such issuance; X = the aggregate number of Common Units issuable pursuant to such rights, warrants or options; and Y = the number of Common Units equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Price per Common Unit for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. Any increase made pursuant to this clause (ii) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the open of business on the ex-dividend date for such issuance. For purposes of this clause (ii), in determining whether any rights, warrants or options entitle the holders of Common Units to subscribe for or purchase Common Units at less than the applicable Closing Sale Price per Common Unit, and in determining the aggregate exercise or conversion price payable for such Common Units, there shall be taken into account any consideration the Partnership receives for such rights, warrants or options 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 (or committee thereof). If any right, warrant or option described in this clause (ii) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Partnership shall adjust the new applicable Series C Conversion Rate to the Series C Conversion Rate that would then be in effect if such right, warrant or option had not been so issued. For purposes of this clause (ii), the number of Common Units outstanding at the open of business on the ex-dividend date shall not include Common Units held in treasury. We will not issue any such rights, options or warrants in respect of Common Units held in treasury.
(iii) If the Partnership distributes Partnership Interests, evidence of indebtedness or other assets or property to all or substantially all holders of Common Units (excluding any of the following (A) distributions, rights, warrants or options referred to in clause (i) or (ii) above; (B) distributions paid exclusively in cash; (C) spin-offs, as described below in this clause (iii); and (D) any distributions in connection with a Reorganization Event), then the Partnership will adjust the Series C Conversion Rate based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – FMV where CR0 = the applicable Series C Conversion Rate in effect immediately prior to open of business on the ex-dividend date for such distribution; CR1 = the new Series C Conversion Rate in effect immediately after open of business on the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Price per Common Unit for 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 or committee thereof in good faith) of the Partnership Interests, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Units immediately prior to the open of business on the ex-dividend date for such distribution; An adjustment to the Series C Conversion Rate made pursuant to the immediately preceding paragraph shall become effective after the open of business on the ex-dividend date for such distribution. If such distribution is not so paid or made, the applicable Series C Conversion Rate shall be decreased to the Series C 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 Series C Holder shall receive, in respect of such Series C Preferred Unit, at the same time and upon the same terms as holders of the Common Units, the amount and kind of Partnership Interests, evidences of indebtedness, other assets or property of the Partnership or rights, options or warrants to acquire Partnership Interests or other securities that such Series C Holder would have received if such Series C Holder owned a number of Common Units equal to the Series C Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for the distribution. Notwithstanding anything to the contrary in this clause (iii), if the Partnership distributes to all holders of Common Units Partnership Interests of any class or series, or similar equity interest, of or relating to one of the Partnership’s subsidiaries or other business unit (a “spin-off”) the Series C Conversion Rate in effect immediately before the 10th Trading Day from and including the effective date of the spin-off shall be adjusted based on the following formula: CR1 = CR0 x FMV0 + MP0 MP0 where CR0 = the applicable Series C Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such spin-off; CR1 = the new Series C Conversion Rate in effect immediately after the open of business on the ex-dividend date of such spin-off; FMV0 = the average of the Closing Sale Prices per Partnership Interest or similar equity interest distributed to holders of Common Units applicable to one Common Unit 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 Closing Sale Prices per Common Unit over the Valuation Period. An adjustment to the Series C Conversion Rate made pursuant to the immediately preceding paragraph shall occur on the last Trading Day of the Valuation Period but will be given effect immediately after the open of business on the ex-dividend date for such spin-off; provided, that, in respect of any conversion during the Valuation Period, references in the preceding clause (iii) with respect to “10 consecutive Trading Day period” shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the ex-dividend date of such spin-off to, but excluding, the Series C Conversion Date in determining the Series C Conversion Rate. If such spin-off does not occur, the Series C Conversion Rate shall be decreased to be the Series C Conversion Rate that would then be in effect if such distribution had not been declared, effective as of the date on which the Board of Directors (or a committee thereof) determines not to consummate such spin-off.
(iv) If the Partnership makes any cash distribution to all, or substantially all, holders of outstanding Common Units (excluding any of the following: (A) any distribution in connection with the Partnership’s liquidation, dissolution or winding up, (B) any consideration payable as part of a tender offer or exchange offer as to which an adjustment was effected under clause (v) below, and (C) any regular, quarterly cash distribution that does not exceed $0.3675 per Common Unit) (the “Initial Distribution Threshold”)), the Series C Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, x SP0– T SP0 – C where CR0 = the applicable Series C Conversion Rate in effect immediately prior to open of business on the ex-dividend date for such distribution; CR1 = the new Series C Conversion Rate in effect immediately after the open of business on the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Price per Common Unit for the 10 consecutive Trading Day period ending on, and including, the Business Day immediately preceding the ex-dividend date for such distribution; C = the amount in cash per Common Unit that the Partnership distributes to all or substantially all of the holders of common Units; and T = the Initial Distribution Threshold; provided that if the distribution is not a regular, quarterly cash distribution, the initial distribution threshold shall be deemed to be zero. The Initial Distribution Threshold is subject to adjustment on an inversely proportional basis whenever the applicable Series C Conversion Rates are adjusted, but no adjustment will be made to the Initial Distribution Thresholder for any adjustment made to the applicable Series C Conversion Rates pursuant to this clause (iv). An adjustment to the Series C Conversion Rate made pursuant to this clause (iv) shall become effective immediately after open of business on the ex-dividend date for such distribution. 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 Series C Holder will receive, for each Series C Preferred Unit held at the same time and upon the same terms as holders of Common Units, the amount of cash that such Series C Holder would have received if such Series C Holder had owned a number of Common Units equal to the Series C Conversion Rate in effect immediately prior to the adjustment relating open of business on the ex-dividend date for such cash distribution. If any distribution described in this clause (iv) is declared but not so paid or made, the new Series C Conversion Rate shall be re-adjusted to the Series C Conversion Rate that would then be in effect if such distribution had not been declared.
(v) If the Partnership or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Units (that is subject to the tender offer rules of the Exchange Act that are then applicable), other than odd lot tender offers, to the extent that the cash and value of any other consideration included in the payment per Common Unit exceeds the average of the Closing Sale Prices per Common Unit over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such eventtender offer or exchange offer (the “Expiration Date”), the Series C Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x (AC + (SP1 x OS1)) / (SP1 x OS0) where CR0 = the applicable Series C Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding Expiration Date; CR1 = the new Series C Conversion Rate in effect taking 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 by the Board of Directors or committee thereof) paid or payable for Common Units purchased in such event into accounttender or exchange offer; OS0 = the number of Common Units outstanding immediately prior to the effective expiration time of the adjustment relating tender or exchange offer on the Expiration Date (before giving effect to the purchase or exchange of securities pursuant to such event;tender or exchange offer); OS1 = the number of Common Units outstanding immediately after the expiration time of the tender or exchange offer on the Expiration Date (after giving effect to the purchase or exchange of securities pursuant to such tender or exchange offer); and SP1 = the average of the Closing Sale Prices of the Common Units over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date (the “Averaging Period”). If the application of the foregoing formula would result in a decrease in the Series C Conversion Rate, no adjustment to the Series C Conversion Rate shall be made. Any adjustment to the Series C Conversion Rate made pursuant to this clause (v) shall be determined on the last day of the Averaging Period but will be given effect at the open of business on the Trading Day next succeeding the Expiration Date. If, however, the Series C Conversion Date for a Series C Preferred Unit occurs during the 10 Trading Days following, and including, the Trading Day next succeeding the Expiration Date, the references within the preceding paragraph of this clause (v) to “10 consecutive Trading Day period” shall be deemed replaced, solely with respect to that conversion, with references to such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date, but excluding such relevant Series C Conversion Date. If the Partnership or one of its Subsidiaries is obligated to purchase Common Units 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 Partnership shall readjust the new Series C Conversion Rate to be the Series C Conversion Rate that would be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, if a Series C Conversion Rate adjustment becomes effective on any ex-dividend date as described above, and a holder that has converted its Series C Preferred Units on or after such ex-dividend date and on or prior to the related record date would be treated
Appears in 1 contract
Sources: Agreement of Limited Partnership (Landmark Infrastructure Partners LP)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership in accordance with the provisions of this Section 9.
(a) If the Partnership issues Common Units as a distribution to all or substantially all holders of Common Units, or if the Partnership effects a split or combination of Common Units, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event; and OS1 = the number of Common Units outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any distribution of the type described in this Section 9(a) is not so paid or made, or the outstanding Common Units are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner determines not to pay such distribution or to effect such split or combination, to the Conversion Rate that would then be in effect if such distribution, split or combination had not been announced.
(b) If the Partnership issues to all or substantially all holders of Common Units any rights, warrants, options or other securities entitling them (for a period of not more than 45 calendar days after the date fixed for the determination of the holders of Common Units entitled to receive such rights, warrants, options or other securities) to subscribe for or purchase Common Units, or if the Partnership issues to all holders of Common Units securities convertible into Common UnitsUnits (for a period of not more than 45 calendar days after the date fixed for the determination of the holders of Common Units entitled to receive such convertible securities), in either case at an exercise price per Common Unit or a conversion price per Common Unit less than the volume-weighted average of the Closing Prices of Common Units over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Date for such issuance, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event; CR1 = the new Conversion Rate in effect taking such event into account; OS0 = the number of Common Units outstanding immediately prior to the effective time of the adjustment relating to such event;
Appears in 1 contract
Sources: Amendment to Limited Partnership Agreement (Atlas Resource Partners, L.P.)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Partnership Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the New Convertible Notes participate (other than in accordance with the provisions 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 the Common Stock and solely as a result of holding the New Convertible Notes, in any of the transactions described in this Section 99.04, without having to convert their New Convertible Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of New Convertible Notes held by such Holder.
(a) If the Partnership Company exclusively issues shares of Common Units Stock as a dividend or distribution to on all or substantially all holders shares of the Common UnitsStock, or if the Partnership Company effects a share split or combination of Common Unitsshare combination, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × OS1 / OS0 where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating close of the business on the Record Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such eventshare split or share combination, as applicable; CR1 = the new Conversion Rate in effect taking immediately after the close of business on such event into accountRecord Date or immediately after the open of business on such Effective Date, as applicable; OS0 = the number of shares of Common Units Stock outstanding immediately prior to the effective time close of business on such Record Date or immediately prior to the adjustment relating open of business on such Effective Date, as applicable, before giving effect to such eventdividend distribution shares split or share combination; and OS1 = the number of shares of Common Units Stock outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 9.04(a) shall 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 for such share split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any dividend or distribution of the type described in this Section 9(a9.04(a) is declared but not so paid or made, or any share split or combination of the type described in this Section 9.04(a) is announced but the outstanding shares of Common Units Stock are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective as of the date the General Partner Board of Directors determines not to pay such distribution dividend or distribution, or not to effect such split or combinationcombine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such distribution, dividend or distribution had not been declared or such share split or combination had not been announced.
(b) If the Partnership Company issues to all or substantially all holders of the Common Units Stock any rights, warrants, options or warrants (other securities than pursuant to a stockholder rights plan subject to clause (c) below) entitling them 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 the Common UnitsStock 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: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such issuance; CR1 = the Conversion Rate in effect immediately after the close of business on such Record Date; OS0 = the number of shares of Common Stock outstanding immediately prior to the close of business on such Record 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 9.04(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 issuance. To the extent that shares of the Common Stock are not delivered upon the expiration of such rights, options or warrants, the 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, 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 readjusted to the Conversion Rate that would then be in effect if such Record Date for such issuance had not occurred. For purposes of this Section 9.04(b), in determining whether any rights, options or warrants entitle the Partnership issues holders of the Common Stock to subscribe for or purchase shares of the Common Stock at a price per share 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.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities of the Company, to all holders of the Common Units securities convertible into Common UnitsStock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 9.04(a) or Section 9.04(b), (ii) dividends or distributions paid exclusively in either case at cash as to which an exercise price per Common Unit adjustment was effected pursuant to Section 9.04(d) and (iii) Spin-Offs as to which the provisions set forth below in this Section 9.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or a conversion price per Common Unit less than property or rights, options or warrants to acquire Capital Stock or other securities, the volume-weighted “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the close of business on such Record Date; SP0 = the average of the Closing Last Reported Sale Prices of the Common Units Stock over the ten 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Dividend Date for such issuancedistribution; 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 Record Date for such distribution. Any increase made under the portion of this Section 9.04(c) above shall become effective immediately after the close of business on the Record Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be readjusted to 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 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 Record Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 9.04(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, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section 9.04(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 or investment 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: where, CR0 = the Conversion Rate in effect immediately prior to the end of the Valuation Period (as defined below); CR1 = the Conversion Rate in effect immediately after the end of the Valuation Period; 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 set forth in Section 1.01 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 under the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that in respect of any conversion of New Convertible Notes during the Valuation Period, references in the portion of this Section 9.04(c) related to Spin-Offs with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate. For purposes of this Section 9.04(c) (and subject in all respect to Section 9.11), rights, options or warrants distributed by the Company to 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 (“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 9.04(c) (and no adjustment to the Conversion Rate under this Section 9.04(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 9.04(c). If any such right, option or warrant is 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 9.04(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. For purposes of Section 9.04(a), Section 9.04(b) and this Section 9.04(c), if any dividend or distribution to which this Section 9.04(c) is applicable also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 9.04(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 9.04(b) is applicable (the “Clause B Distribution”), then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 9.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 9.04(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 9.04(a) and Section 9.04(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 such Record Date or immediately after the open of business on such Effective Date, as applicable” within the meaning of Section 9.04(a) or “outstanding immediately prior to the close of business on such Record Date” within the meaning of Section 9.04(b).
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 × (OS0 + X) / (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to close of business on the Record Date for such eventdividend or distribution; CR1 = the new Conversion Rate in effect taking immediately after the close of business on the Record Date for such event into accountdividend or distribution; OS0 SP0 = the number of Common Units outstanding immediately prior to the effective time Last Reported Sale Price of the adjustment relating 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 all holders of the Common Stock. Any increase pursuant to this Section 9.04(d) shall become effective immediately after the close of business on the Record Date for such event;dividend or distribution. If such dividend
Appears in 1 contract
Conversion Rate Adjustments. (a) The applicable Conversion Rate shall be adjusted from time to time by the Partnership 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 accordance with any of the provisions transactions described below as if such Holders held a number of this Section 9ADSs 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 is 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.
(ai) If the Partnership Issuer issues Common Units solely Ordinary Shares as a dividend or any other distribution to (including by recapitalization of retained earnings) on all or substantially all holders of Common UnitsOrdinary Shares, or if the Partnership Issuer effects a share split or share combination of Common Unitsits Ordinary Shares, the applicable Conversion Rate shall will be adjusted based on the following formula: CR1 CR = CR0 × OS1 / OS OS0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the adjustment relating open of business on the Business Day immediately following (x) the date fixed for the determination of holders of Ordinary Shares entitled to receive such eventdividend or distribution or (y) the date on which such split or combination becomes effective, as applicable (such date specified in clause (x) or (y), the “Dividend Record Date”); CR1 CR = the new applicable Conversion Rate in effect taking such event into accountimmediately after the open of business on the Business Day immediately following the Dividend Record Date; OS0 = the number of Common Units Ordinary Shares outstanding immediately prior to the effective time open of business on the adjustment relating to such eventDividend Record Date; and OS1 OS = the number of Common Units Ordinary Shares that would have been outstanding immediately after prior to the effective time open of business on the adjustment relating Dividend Record Date as adjusted to take into account such event (giving effect to such dividend, distribution, split or share combination, as applicable, as of such effective time). Any adjustment made pursuant to this Section 9(a) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date or the effective date of such split or combination, as applicable. If any dividend or distribution of the type described in this Section 9(aclause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or the outstanding Common Units Ordinary Shares are not split or combined, as the case may be, the new Conversion Rate shall be immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the General Partner Issuer’s shareholders’ meeting or Board of Directors determines not to pay such distribution dividend or distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to effect have been paid, or (in the case of a stock split or combination) the date on which such split or combinationcombination was to have been effective, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared or announced.
(bii) If the Partnership issues Issuer distributes to all or substantially all holders of Common Units Ordinary Shares any rights, warrantsoptions, options warrants or other securities entitling them for a period of not more than 45 calendar days from the record date for such distribution to subscribe for or purchase Common UnitsOrdinary Shares (or securities convertible into Ordinary Shares), at a price per Ordinary Share (or conversion price per Ordinary Share) less than the average of the Last Reported Sale Prices of the Ordinary Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution, the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × (OS0 + X) (OS0 + Y) where, 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 rights, options, warrants or other securities (such date, the “Rights Distribution Record Date”); CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Rights Distribution Record Date; OS0 = the number of Ordinary Shares outstanding immediately prior to the open of business on the Rights Distribution Record Date; X = the total number of Ordinary Shares issuable pursuant to such rights, options, warrants or other securities; and Y = the number of Ordinary Shares equal to the aggregate price payable to exercise such rights, options, warrants or other securities divided by the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading 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 Partnership issues 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, options, warrants or other securities been made on the basis of delivery of only the number of Ordinary Shares actually delivered. For purposes of this clause (ii), in determining whether any rights, options, warrants or other securities entitle the holders to subscribe for or purchase Ordinary Shares at less than the average of the Last Reported Sale Prices of Ordinary Shares for each Trading Day in the applicable 10 consecutive Trading Day period, there shall be taken into account any consideration the Issuer receives for such rights, options, warrants or other securities and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined by the Issuer’s Board of Directors.
(iii) If the Issuer distributes shares of its Capital Stock, evidences of its Indebtedness, other assets or property or rights or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Common Units Ordinary Shares, excluding
(A) dividends or distributions and rights, options, warrants and other securities convertible into Common Unitsdescribed in clause (i) or (ii) above or clause (v) below;
(B) dividends or distributions paid exclusively in cash, including as described in either case at an exercise price per Common Unit clause (iv) below;
(C) dividends or distributions effected pursuant to a conversion price per Common Unit less than reclassification, merger, sale, conveyance or other transaction described in Section 12.06 hereof, where such dividend or distribution becomes Reference Property as described in Section 12.06 hereof; and
(D) Spin-Offs to which the volume-weighted provisions set forth below in this clause (iii) shall apply; then the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ - FMV) 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 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 Common Units Ordinary Shares over the ten 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-distribution Dividend Date for such issuancedistribution; and FMV = the fair market value (as determined by the Issuer’s Board of Directors or a committee thereof) of the shares of Capital Stock, evidences of Indebtedness, assets, property, rights or warrants distributed with respect to each outstanding Ordinary Share as of 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; provided further that if the Issuer’s Board of Directors determines “FMV” for purposes of the foregoing adjustment by reference to the trading market for any securities, it must in doing so consider the prices in such 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 Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this clause (iii) where there has been a payment of a dividend or other distribution on the Ordinary Shares or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate shall will be adjusted based on the following formula: CR1 CR = CR0 × (OS0 FMV + XMP0) / (OS0 + Y) MP0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the adjustment relating to such eventopening of business on the Business Day immediately following the record date for the Spin-Off; CR1 CR = the new applicable Conversion Rate in effect taking immediately after the opening of business on the Business Day immediately following such event into accountrecord date; FMV = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Ordinary Shares applicable to one Ordinary Share over the first 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 shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off 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 Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the 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 dividend or distribution results in an adjustment to the Conversion Rate under the preceding paragraph and such dividend or distribution is 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.
(v) If (A) the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the 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 such tender or exchange offer (the “Expiration Date”), the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × AC + (SP x OS) (SP x OS0) where, CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day next succeeding the Expiration Date; CR = the applicable Conversion Rate in effect immediately after the 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 tender or exchange offer; OS0 = the number of Common Units Ordinary Shares outstanding immediately prior to the effective 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 = 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 Expiration Date. The adjustment relating to 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 be deemed replaced with such event;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 be in effect if such tender or exchange offer had not been 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 under this Section 12.05(a) cannot be made at such time because the facts required for such determination cannot be ascertained, the Issuer will make such determination as soon as practicable upon such information becoming determinate, and such adjustment will be 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 more than one of such clauses, the Issuer shall, in good faith, determine the adjustment to be made, including, if applicable, th
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)