Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company upon the occurrence of any of the transactions described in this Section 4.04, except that the Company shall not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Class A Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 4.04 without having to convert their Securities as if they held a number of shares of Class A Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder. (a) If the Company exclusively issues shares of Class A Common Stock as a dividend or distribution on shares of Class A Common Stock, or if the Company effects a share split or share combination on shares of Class A Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS1 = the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business on the Ex-Dividend 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. If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company issues to all or substantially all holders of Class A Common Stock any rights, options or warrants entitling them, for a period of not more than 45 days after the announcement date of such issuance, to subscribe for or purchase shares of Class A Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Class A 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 open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Class A Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.04(b) and for the purpose of Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A Common Stock at less than such average of the Last Reported Sale Prices of the Class A 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, and in determining the aggregate offering price of such shares of Class A 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 of its assets or property or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Class A Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment, if any, is provided for pursuant to Section 4.04(a) or Section 4.04(b), (ii) dividends or distributions paid exclusively in cash, as to which the provisions set forth in Section 4.04(d) below shall apply, and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “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 open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of such Holder’s Securities, at the same time and upon the same terms as holders of Class A Common Stock, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on the Class A 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, 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 open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the shares or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of the Class A Common Stock over the 10 consecutive Trading Day period beginning on, 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 Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, (x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the Class A Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Class A 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 or substantially all holders of Class A Common Stock. Any increase pursuant to this Section 4.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Class A Common Stock, and the cash and value of any other consideration included in the payment per share of the Class A Common Stock exceeds the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Class A Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on the Expiration Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of Class A Common Stock outstanding immediately after the open of business on

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Sources: Indenture (Ezcorp Inc)

Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company upon the occurrence of any of the transactions described in this Section 4.04, except that the Company shall not make any adjustments to the Conversion Rate if Holders participate A-12 (~~other than in the case of (x~~NY) 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 Class A Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 4.04 without having to convert their Securities as if they held a number of shares of Class A Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder07865/002/TARP/2010/Series.G.COD.doc (a) If The Conversion Rate and the ~~Company exclusively issues shares~~ Number of ~~Class A~~ Underlying Shares shall be subject to adjustment, without duplication, under the following circumstances: (i) the issuance of Common Stock as a dividend or distribution ~~on shares~~ to all holders of ~~Class A~~ Common Stock, or a subdivision or combination of Common Stock, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS1 / OS0) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date prior to giving effect to such event OS1 = the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event (ii) the issuance to all holders of Common Stock of certain rights, options or warrants entitling them for a period expiring 60 days or less from the date of issuance of such rights, options or warrants to purchase shares of Common Stock at less than the Current Market Price of Common Stock as of the record date, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS0 + X) / (OS0 + Y) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants Y = the aggregate price payable to exercise such rights divided by the Average VWAP per share of the Common Stock over each of the 10 consecutive Trading Days prior to the Business Day immediately preceding the announcement of the issuance of such rights, options or warrants However, the Conversion Rate shall be readjusted to the extent that any such rights, options or warrants are not exercised prior to their expiration. A-13 (NY) 07865/002/TARP/2010/Series.G.COD.doc (iii) the dividend or other distribution to all holders of Common Stock of shares of capital stock of the Company (other than Common Stock), rights to acquire capital stock of the Company or evidences of the Company’s indebtedness or the Company’s assets (excluding any dividend, distribution or issuance covered by clauses (i) or (ii) above or (iv) or (v) below) in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x ▇▇▇ / (▇▇▇ – FMV) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date SP0 = the Current Market Price as of the record date FMV = the fair market value (as determined in good faith by the Board of Directors, whose good faith determination when evidenced by a Board Resolution shall be conclusive and binding), on the record date, of the shares of capital stock of the Company, rights to acquire capital stock, evidences of indebtedness or assets so distributed, expressed as an amount per share of Common Stock However, if the ~~Company effects~~ transaction that gives rise to an adjustment pursuant to this clause (iii) is one pursuant to which the payment of a ~~share split~~ dividend or ~~share combination~~ other distribution on Common Stock consist of shares of ~~Class A~~ capital stock of, or similar equity interests in, a subsidiary or other business unit of the Company, that are, or, when issued, will be, traded on a U.S. securities exchange, then the Conversion Rate shall instead be adjusted based on the following formula: SR1 = SR0 x (FMV0 + MP0) / MP0 where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date FMV0 = the Average VWAP of the capital stock or similar equity interests distributed to holders of Common Stock applicable to one share of Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock MP0 = the Average VWAP of the Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock (iv) the Company makes a distribution consisting exclusively of cash to all holders of Common Stock, excluding (a) any cash that is distributed as part of a distribution referred to in clause (iii) above, and (b) any consideration payable in connection with a tender or exchange offer made by the Company or any of the Company’s subsidiaries referred to in clause (v) below, in which event, the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x ▇▇▇ / (▇▇▇ – C) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1~~ record date SR1 = the Conversion Rate in effect immediately after the ~~open of business on such Ex-Dividend Date or Effective Date; OS0~~ record date SP0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS1 = the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business on the Ex-Dividend 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. If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective Current Market Price as of the record date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company issues to all or substantially all holders of Class A Common Stock any rights, options or warrants entitling them, for a period of not more than 45 days after the announcement date of such issuance, to subscribe for or purchase shares of Class A Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Class A 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 open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Class A Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.04(b) and for the purpose of Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A Common Stock at less than such average of the Last Reported Sale Prices of the Class A 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, and in determining the aggregate offering price of such shares of Class A 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 of its assets or property or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Class A Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment, if any, is provided for pursuant to Section 4.04(a) or Section 4.04(b), (ii) dividends or distributions paid exclusively in cash, as to which the provisions set forth in Section 4.04(d) below shall apply, and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “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 open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of such Holder’s Securities, at the same time and upon the same terms as holders of Class A Common Stock, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on the Class A 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, 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 open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the shares or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of the Class A Common Stock over the 10 consecutive Trading Day period beginning on, 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 Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, (x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the Class A Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Class A 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 of Common Stock the Company distributes to all or substantially all holders of Class A Common Stock. Any increase pursuant to this Section 4.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution.holders (ev) If the Company or ~~any~~ one or more of its ~~Subsidiaries makes a payment in respect~~ subsidiaries make purchases of Common Stock pursuant to a tender offer or exchange offer by the Company or a subsidiary of the Company for Common Stock to the ~~Class A Common Stock, and~~ extent that the cash and value of any other consideration included in the payment per share of ~~the Class A~~ Common Stock validly tendered or exchanged exceeds the ~~average~~ VWAP per share of ~~the Last Reported Sale Prices of the Class A~~ Common Stock ~~over the 10 consecutive Trading Day period commencing on, and including,~~ on the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders or exchanges may be made pursuant to such tender or exchange ~~offer~~offer (the “expiration date”), in which event the Conversion Rate ~~shall~~ will be ~~increased~~ adjusted based on the following formula: SR1 = SR0 x [(FMV + (SP1 x OS1)] / (SP1 x OS0) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Trading Day next succeeding the Expiration Date; CR1~~ expiration date SR1 = the Conversion Rate in effect immediately after the ~~open~~ expiration date FMV = the fair market value (as determined in good faith by the Board of ~~business~~ Directors whose good faith determination when evidenced by a Board Resolution will be conclusive and binding), on the ~~Trading Day next succeeding~~ expiration date, of the ~~Expiration Date; AC = the~~ A-15 (NY) 07865/002/TARP/2010/Series.G.COD.doc aggregate value of all cash and any other consideration ~~(as determined by the Board of Directors)~~ paid or payable for shares validly tendered or exchanged and not withdrawn as of ~~Class A~~ the expiration date (the “Purchased Shares”) OS1 = the number of shares of Common Stock ~~purchased in~~ outstanding as of the last time tenders or exchanges may be made pursuant to such tender or exchange ~~offer;~~ offer (the “Expiration Time”) less any Purchased Shares OS0 = the number of shares of ~~Class A~~ Common Stock outstanding ~~immediately prior to the open of business on~~ at the Expiration ~~Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1~~ Time, including any Purchased Shares SP1 = the ~~number~~ Average VWAP of ~~shares of Class A~~ the Common Stock ~~outstanding~~ over each of the 10 consecutive Trading Days commencing with the Trading Day immediately after the ~~open of business on~~expiration date.

Appears in 1 contract

Sources: Master Transaction Agreement

Conversion Rate Adjustments. (a) The Conversion Rate and the Number of Underlying Shares shall be ~~adjusted from time~~ subject to ~~time by~~ adjustment, without duplication, under the Company upon the occurrence of any of the transactions described in this Section 4.04, except that the Company shall not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Class A Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 4.04 without having to convert their Securities as if they held a number of shares of Class A Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder.following circumstances: (ai) If the ~~Company exclusively issues shares~~ issuance of ~~Class A~~ Common Stock as a dividend or distribution ~~on shares~~ to all holders of ~~Class A~~ Common Stock, or a subdivision or combination of Common Stock, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS1 / OS0) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date prior to giving effect to such event OS1 = the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event (ii) the issuance to all holders of Common Stock of certain rights, options or warrants entitling them for a period expiring 60 days or less from the date of issuance of such rights, options or warrants to purchase shares of Common Stock at less than the Current Market Price of Common Stock as of the record date, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS0 + X) / (OS0 + Y) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants Y = the aggregate price payable to exercise such rights divided by the Average VWAP per share of the Common Stock over each of the 10 consecutive Trading Days prior to the Business Day immediately preceding the announcement of the issuance of such rights, options or warrants However, the Conversion Rate shall be readjusted to the extent that any such rights, options or warrants are not exercised prior to their expiration. (iii) the dividend or other distribution to all holders of Common Stock of shares of capital stock of the Company (other than Common Stock), rights to acquire capital stock of the Company or evidences of the Company’s indebtedness or the Company’s assets (excluding any dividend, distribution or issuance covered by clauses (i) or (ii) above or (iv) or (v) below) in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x SP0 / (SP0 — FMV) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date SP0 = the Current Market Price as of the record date FMV = the fair market value (as determined in good faith by the Board of Directors, whose good faith determination when evidenced by a Board Resolution shall be conclusive and binding), on the record date, of the shares of capital stock of the Company, rights to acquire capital stock, evidences of indebtedness or assets so distributed, expressed as an amount per share of Common Stock However, if the ~~Company effects~~ transaction that gives rise to an adjustment pursuant to this clause (iii) is one pursuant to which the payment of a ~~share split~~ dividend or ~~share combination~~ other distribution on Common Stock consist of shares of ~~Class A~~ capital stock of, or similar equity interests in, a subsidiary or other business unit of the Company, that are, or, when issued, will be, traded on a U.S. securities exchange, then the Conversion Rate shall instead be adjusted based on the following formula: SR1 = SR0 x (FMV0 + MP0) / MP0 where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date FMV0 = the Average VWAP of the capital stock or similar equity interests distributed to holders of Common Stock applicable to one share of Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other MP0 = the Average VWAP of the Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock (iv) the Company makes a distribution consisting exclusively of cash to all holders of Common Stock, excluding (A) any cash that is distributed as part of a distribution referred to in clause (iii) above, and (B) any consideration payable in connection with a tender or exchange offer made by the Company or any of the Company’s subsidiaries referred to in clause (v) below, in which event, the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x SP0 / (SP0 — C) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1~~ record date SR1 = the Conversion Rate in effect immediately after the ~~open of business on such Ex-Dividend Date or Effective Date; OS0~~ record date SP0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS1 = the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business on the Ex-Dividend 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. If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective Current Market Price as of the record date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company issues to all or substantially all holders of Class A Common Stock any rights, options or warrants entitling them, for a period of not more than 45 days after the announcement date of such issuance, to subscribe for or purchase shares of Class A Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Class A 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 open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Class A Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.04(b) and for the purpose of Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A Common Stock at less than such average of the Last Reported Sale Prices of the Class A 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, and in determining the aggregate offering price of such shares of Class A 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 of its assets or property or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Class A Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment, if any, is provided for pursuant to Section 4.04(a) or Section 4.04(b), (ii) dividends or distributions paid exclusively in cash, as to which the provisions set forth in Section 4.04(d) below shall apply, and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “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 open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of such Holder’s Securities, at the same time and upon the same terms as holders of Class A Common Stock, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on the Class A 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, 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 open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the shares or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of the Class A Common Stock over the 10 consecutive Trading Day period beginning on, 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 Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, (x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the Class A Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Class A 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 of Common Stock the Company distributes to all or substantially all holders of Class A Common Stock. Any increase pursuant to this Section 4.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution.holders (ev) If the Company or ~~any~~ one or more of its ~~Subsidiaries makes a payment in respect~~ subsidiaries make purchases of Common Stock pursuant to a tender offer or exchange offer by the Company or a subsidiary of the Company for Common Stock to the ~~Class A Common Stock, and~~ extent that the cash and value of any other consideration included in the payment per share of ~~the Class A~~ Common Stock validly tendered or exchanged exceeds the ~~average~~ VWAP per share of ~~the Last Reported Sale Prices of the Class A~~ Common Stock ~~over the 10 consecutive Trading Day period commencing on, and including,~~ on the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders or exchanges may be made pursuant to such tender or exchange ~~offer~~offer (the “expiration date”), in which event the Conversion Rate ~~shall~~ will be ~~increased~~ adjusted based on the following formula: SR1 = SR0 x [(FMV + (SP1 x OS 1)] / (SP1 x OS0) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Trading Day next succeeding the Expiration Date; CR1~~ expiration date SR1 = the Conversion Rate in effect immediately after the ~~open~~ expiration date FMV = the fair market value (as determined in good faith by the Board of ~~business~~ Directors whose good faith determination when evidenced by a Board Resolution will be conclusive and binding), on the ~~Trading Day next succeeding the Expiration Date; AC =~~ expiration date, of the aggregate value of all cash and any other consideration ~~(as determined by the Board of Directors)~~ paid or payable for shares validly tendered or exchanged and not withdrawn as of ~~Class A~~ the expiration date (the “Purchased Shares”) OS1 = the number of shares of Common Stock ~~purchased in~~ outstanding as of the last time tenders or exchanges may be made pursuant to such tender or exchange ~~offer;~~ offer (the “Expiration Time”) less any Purchased Shares OS0 = the number of shares of ~~Class A~~ Common Stock outstanding ~~immediately prior to the open of business on~~ at the Expiration ~~Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1~~ Time, including any Purchased Shares SP1 = the ~~number~~ Average VWAP of ~~shares of Class A~~ the Common Stock ~~outstanding~~ over each of the 10 consecutive Trading Days commencing with the Trading Day immediately after the ~~open of business on~~expiration date.

Appears in 1 contract

Sources: Purchase Agreement

Conversion Rate Adjustments. The Conversion Rate shall be ~~adjusted~~ adjusted, from time to time by the ~~Company~~ Company, upon the occurrence of any of the ~~transactions described in this Section 4.04~~following events, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes have the right to participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of ~~the Class A~~ Common Stock and solely as a result of holding the ~~Securities~~Notes, in any of the transactions described in this Section ~~4.04~~ 4.05, without having to convert their ~~Securities~~ Notes as if they held a number of shares of ~~Class A~~ Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of ~~Securities~~ Notes held by such Holder. (a) If the Company exclusively issues shares of ~~Class A~~ Common Stock as a dividend or distribution on shares of ~~Class A~~ its Common Stock, or if the Company effects a share split or share ~~combination on shares of Class A Common Stock~~combination, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the ~~Effective Date~~ effective date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or ~~Effective Date~~effective date; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or ~~Effective Date (before giving effect to any such dividend, distribution, split or combination)~~effective date; and OS1 = the number of shares of ~~Class A~~ Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section ~~4.04(a~~4.05(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the ~~Effective Date~~ effective date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section ~~4.04(a~~4.05(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. The Company shall not pay any dividend or make any distribution on its Common Stock held in treasury, if any. (b) If the Company issues to all or substantially all holders of ~~Class A~~ its Common Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of ~~Class A~~ Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the ~~Class A~~ Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of ~~Class A~~ Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of ~~Class A~~ 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 ~~Class A~~ Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section ~~4.04(b~~4.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the ~~Class A~~ Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of ~~Class A~~ Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section ~~4.04(b~~4.05(b) and ~~for the purpose of~~ Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of ~~Class A~~ the Common Stock at less than such average of the Last Reported Sale Prices of the ~~Class A~~ Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of for such issuance, and in determining the aggregate offering price of such shares of ~~Class A~~ Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. The Company shall not issue any such rights, options or warrants in respect of its Common Stock held in treasury, if any. (c) If the Company distributes shares of its Capital Stock, evidences of its ~~indebtedness,~~ indebtedness or other ~~of its~~ assets or property of the Company or rights, options or warrants to acquire ~~shares of its~~ Capital Stock or other securities, to all or substantially all holders of the ~~Class A~~ Common Stock, excluding (i) dividends, distributions or issuances ~~as to which an adjustment~~covered in Section 4.05(a), ~~if any, is provided for pursuant to~~ Section ~~4.04(a~~4.05(b) or Section ~~4.04(b~~4.05(e), (ii) dividends or distributions paid exclusively in ~~cash, as to which the provisions set forth~~ cash covered in Section ~~4.04(d~~4.05(d) ~~below shall apply,~~ and (iii) Spin-~~Offs,~~ Offs as to which the provisions set forth below in this Section ~~4.04(c~~4.05(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire ~~shares of~~ Capital Stock or other ~~securities of the Company distributed with respect to each outstanding share of Class A Common Stock~~securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – FMV where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ~~Class A~~ Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section ~~4.04(c~~4.05(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount ~~of such Holder’s Securities~~thereof, at the same time and upon the same terms as holders of ~~Class A~~ the Common ~~Stock~~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 ~~Class A~~ Common Stock equal to the Conversion Rate in effect on the ~~Record~~ Ex-Dividend Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 4.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section ~~4.04(c~~4.05(c) where there has been a payment of a dividend or other distribution on the ~~Class A~~ 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~~unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x FMV0 + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ end of ~~business on~~ the ~~Ex-Dividend Date for such Spin-Off~~Valuation Period; CR1 = the Conversion Rate in effect immediately after the ~~open~~ end of ~~business on~~ the ~~Ex-Dividend Date for such Spin-Off~~Valuation Period; FMV0 = the average of the Last Reported Sale Prices of the ~~shares~~ Capital Stock or similar equity interest distributed to holders of the ~~Class A~~ Common Stock applicable to one share of the ~~Class A~~ Common Stock (determined by reference to the definition of Last Reported Sale Price as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period ~~beginning on~~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 ~~Class A~~ Common Stock over the Valuation Period. The ~~adjustment~~ increase to the Conversion Rate under the preceding paragraph shall ~~be determined~~ occur on the last Trading Day of the Valuation Period~~, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing,~~ ; provided that (x) in respect of any conversion of ~~Securities~~ Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, ~~references~~ the reference in the ~~portion of this Section 4.04(c) related~~ preceding paragraph to ~~Spin-Offs with respect to 10 consecutive Trading Days~~ “10” shall be deemed ~~to be~~ replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of for such Spin-Off to, ~~but excluding~~and including, ~~the~~ such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of ~~Securities~~ Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, ~~references~~ the reference to “10” in the ~~portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days~~ preceding paragraph 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, ~~the last~~ such Trading Day in determining the Conversion Rate as of such ~~Observation Period~~Trading Day. If ~~such~~ the distribution constituting the Spin-Off ~~does~~ is not ~~occur~~so paid or made, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the ~~Class A~~ Common ~~Stock~~Stock (other than distributions described in Section 4.05(e)), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the ~~Class A~~ 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 or substantially all~~ holders of ~~Class A~~ its Common Stock. Any increase pursuant to this Section ~~4.04(d~~4.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of ~~Securities~~Notes, at the same time and upon the same terms as holders of shares of the ~~Class A~~ Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of ~~Class A~~ Common Stock equal to the Conversion Rate on the ~~Record~~ Ex-Dividend Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the ~~Class A~~ Common ~~Stock~~Stock (other than in respect of odd-lot tender offers), ~~and~~ to the extent that the cash and value of any other consideration included in the payment per share of the ~~Class A~~ Common Stock exceeds the average of the Last Reported Sale Prices of ~~the Class A~~ Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x AC + (SP1 x OS1) OS0 x SP1 where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the ~~Expiration Date~~date such tender or exchange offer expires; CR1 = the Conversion Rate in effect immediately after the ~~open~~ close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the ~~Expiration Date~~date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of ~~Class A~~ Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the ~~open of business on the Expiration Date~~ date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of ~~Class A~~ Common Stock outstanding immediately after the ~~open~~ date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. The increase to the Conversion Rate under this Section 4.05(e) shall occur at the close of business onon the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date that such tender or exchange offer expires to, and including, such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day ne

Appears in 1 contract

Sources: Indenture (Nuvasive Inc)

Conversion Rate Adjustments. The Conversion Rate shall be ~~adjusted~~ subject to adjustment from time to ~~time by the Company~~ time, without duplication, upon the occurrence of any of the ~~transactions described in this Section 4.04~~following events, ~~except~~ provided, that the Company ~~shall~~ will not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as ~~holders~~ Holders of ~~the Class A~~ our Common Stock and solely as a result of holding the ~~Securities~~Notes, in any of the transactions described ~~in this Section 4.04~~ below without having to convert their ~~Securities~~ Notes as if they held a number of shares of ~~Class A~~ Common Stock equal to the Conversion Rate, multiplied by the principal amount ~~(expressed in thousands)~~ of ~~Securities~~ Notes held by such Holder., divided by $1,000: (a) If the Company ~~exclusively~~ issues solely shares of ~~Class A~~ Common Stock as a dividend or distribution on all or substantially all of its shares of ~~Class A~~ Common Stock, or if the Company ~~effects a share split~~ subdivides or ~~share combination on shares of Class A~~ combines Common Stock, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ Open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS1 = the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business Business on the Ex-Dividend Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; CR1 = the Conversion Rate in effect immediately after the ~~open~~ Open of ~~business~~ Business on the ~~Effective~~ Ex-Dividend Date for such ~~share split~~ dividend or ~~share combination~~distribution, or effective date of such subdivision or combination of Common Stock, as ~~applicable. If any~~ the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution or the effective date of such subdivision or combination of Common Stock, as the ~~type~~ case may be; and OS1 = the number of shares of Common Stock that would be outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be. Any adjustment made under this Section 5.05(a) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution or effective date of such subdivision or combination of Common Stock, as the case may be. If such dividend, distribution, subdivision or combination described in this Section ~~4.04(a~~5.05(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or ~~distribution~~distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared~~declared or subdivision or combination had not been announced. (b) If ~~the Company issues~~ an Ex-Dividend Date occurs for a distribution to all or substantially all holders of ~~Class A~~ Common Stock of any rights, options or warrants entitling ~~them,~~ such holders for a period of not more than 45 60 calendar days ~~after~~ from the announcement date of for such ~~issuance,~~ distribution to subscribe for or purchase shares of ~~Class A~~ Common ~~Stock~~ Stock, at a price per share ~~that is~~ less than the average of the ~~Last Reported~~ Closing Sale Prices of the ~~Class A~~ Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date ~~of announcement of~~ for such ~~issuance~~distribution, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x (OS0 + X) (OS0 + Y) where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such ~~issuance~~distribution; CR1 = the Conversion Rate in effect immediately after the ~~open~~ Open of ~~business~~ Business on ~~such~~ the Ex-Dividend ~~Date~~Date for such distribution; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the ~~open~~ Open of ~~business~~ Business on ~~such~~ the Ex-Dividend ~~Date~~Date for such distribution; X = the total number of shares of ~~Class A~~ Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of ~~Class A~~ Common Stock equal to the aggregate price payable to exercise such rights, options or ~~warrants,~~ warrants divided by the average of the ~~Last Reported~~ Closing Sale Prices of ~~the Class A~~ Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 5.05(b) will become effective immediately after the Open of ~~announcement of~~ Business on the ~~issuance of~~ Ex-Dividend Date for such ~~rights, options or warrants~~distribution. Any increase made under this Section ~~4.04(b~~5.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such ~~issuance~~distribution. To the extent that shares of ~~the Class A~~ Common Stock are not delivered after the ~~expiration~~ exercise of such rights, options or warrants, the Conversion Rate shall be ~~decreased~~ 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 ~~Class A~~ Common Stock actually delivered. If such rights, options or warrants are not so ~~issued~~distributed, the Conversion Rate shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect if ~~such Ex-Dividend~~ the Record Date for such ~~issuance~~ distribution had not occurred. For purposes of this Section ~~4.04(b) and for the purpose of Section 4.01(d)(i~~5.05(b), in determining whether any rights, options or warrants entitle the ~~holders~~ Holders to subscribe for or purchase shares of ~~Class A~~ Common Stock at a price that is less than ~~such~~ the average of the ~~Last Reported~~ Closing Sale Prices of the ~~Class A~~ Common Stock ~~for~~ over the applicable 10 consecutive Trading Day period ~~ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance,~~ and in determining the aggregate ~~offering~~ price of payable for such shares of ~~Class A~~ the Common Stock, there shall be taken into account any consideration ~~received by~~ the Company receives for such rights, options or warrants and any amount payable on exercise or conversion thereof, with the value of such ~~consideration,~~ consideration if other than ~~cash,~~ cash to be determined in good faith by the Board of Directors. (cA) If ~~the Company distributes~~ an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of ~~its Capital Stock~~the Company’s capital stock, evidences of ~~its indebtedness,~~ the Company’s indebtedness or other ~~of its~~ assets or property of the Company or rights, options or warrants to acquire ~~shares of its Capital Stock~~ the Company’s capital stock or other securities, to all or substantially all holders of the ~~Class A~~ Common ~~Stock,~~ Stock (excluding (i) ~~dividends~~dividends or distributions and rights, ~~distributions~~ options or ~~issuances~~ warrants as to which an ~~adjustment, if any, is provided for pursuant to~~ adjustment was effected under Section ~~4.04(a~~5.05(a) or Section ~~4.04(b),~~ 5.05(b) above; (ii) dividends or distributions paid exclusively in ~~cash, as to which the provisions set forth in~~ cash covered under Section ~~4.04(d) below shall apply,~~ 5.05(d); and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x ▇▇▇ (▇▇▇ – FMV) where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the ~~open~~ Open of ~~business~~ Business on ~~such~~ the Ex-Dividend ~~Date~~Date for such distribution; SP0 = the average of the ~~Last Reported~~ Closing Sale Prices of the ~~Class A~~ Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the ~~Distributed Property~~ shares of capital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution. Any increase made under the above portion of this Section ~~4.04(c~~5.05(c) ~~above~~ shall become effective immediately after the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such distribution. If No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if such distribution is not so paid or made, the Conversion Rate shall be ~~decreased~~ readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall ~~receive~~receive (without having to convert its notes), in respect of each $1,000 principal amount ~~of such Holder’s Securities~~thereof, at the same time and upon the same terms as holders of ~~Class A~~ the Common Stock, the amount and ~~kind~~ type of ~~Distributed Property~~ the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of ~~Class A~~ Common Stock equal to the Conversion Rate ~~in effect~~ on the Record Date for the distribution. . (B) With respect to an adjustment pursuant to this Section ~~4.04(c~~5.05(c) where there has been ~~a payment of~~ an Ex-Dividend Date for a dividend or other distribution on the ~~Class A~~ Common Stock of shares of ~~Capital Stock~~ capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x FMV + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for ~~such~~ the Spin-Off; CR1 = the Conversion Rate in effect immediately after the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for ~~such~~ the Spin-Off; ~~FMV0~~ FMV = the average of the ~~Last Reported~~ Closing Sale Prices of the ~~shares~~ capital stock or similar equity interest distributed to holders of ~~the Class A~~ Common Stock applicable to one share of ~~the Class A~~ Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 10 consecutive Trading Day period ~~beginning~~ commencing on, and including, the ~~Ex-Dividend Date of~~ effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the ~~Last Reported~~ Closing Sale Prices of the ~~Class A~~ Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 5.05(c) shall be determined on the last ~~Trading Day~~ day of the Valuation ~~Period,~~ Period but ~~shall~~ will be given effect at immediately after the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for ~~such~~ the Spin-Off. ~~Notwithstanding the foregoing, (x) in~~ In respect of any conversion ~~of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs~~ during the Valuation ~~Period~~Period for any Spin-Off, references ~~in the portion of~~ within this Section ~~4.04(c~~5.05(c)(B) related to ~~Spin-Offs with respect to~~ 10 ~~consecutive~~ Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the ~~Ex-Dividend Date of~~ effective date for such Spin-Off to, but excluding, the relevant Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If ~~any~~ an Ex-Dividend Date occurs for a cash dividend or distribution ~~is made~~ to all or substantially all holders of the ~~Class A~~ outstanding Common ~~Stock~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate shall be ~~adjusted~~ increased based on the following formula: CR1 = CR0 x ▇▇▇ (▇▇▇ – C) where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such ~~dividend or~~ distribution; CR1 = the Conversion Rate in effect immediately after the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such ~~dividend or~~ distribution; SP0 = the ~~Last Reported Sale Price~~ average of the ~~Class A~~ Closing Sale Prices of the Common Stock on 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 of Common Stock the Company ~~distributes~~ pays, or distributes, to all or substantially all holders of ~~Class A~~ the Common Stock. Any increase ~~pursuant to~~ made under this Section ~~4.04(d~~5.05(d) shall become effective immediately after the ~~open~~ Open of ~~business~~ Business on the Ex-Dividend Date for such dividend or distribution. ~~If such~~ No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 5.05(d) is declared but not so ~~paid~~paid or made, the Conversion Rate shall be ~~decreased, effective as of the date the Board of Directors determines not~~ readjusted to ~~make or pay such dividend or distribution, to be~~ the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall ~~receive,~~ receive (without having to convert its Notes) for each $1,000 principal amount of ~~Securities~~Notes, at the same time and upon the same terms as holders of shares of ~~the Class A~~ Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of ~~Class A~~ Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the ~~Class A~~ Common ~~Stock~~Stock and, ~~and~~ if the cash and value of any other consideration included in the payment per share of ~~the Class A~~ Common Stock exceeds the average of the ~~Last Reported~~ Closing Sale Prices of the ~~Class A~~ Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders or exchanges may be made pursuant to such tender or exchange ~~offer~~offer (the “Expiration Date”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x AC + (SP1 x OS1) (OS0 x SP1) where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ Open of ~~business~~ Business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the ~~open~~ Open of ~~business~~ Business on the Trading Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of ~~Class A~~ Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the ~~open of business on~~ time (the “Expiration ~~Date~~ Time”) such tender or exchange offer expires (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of ~~Class A~~ Common Stock outstanding immediately after the ~~open~~ Expiration Time (after giving effect to the purchase of ~~business~~ all shares accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date. The adjustment to the Conversion Rate under this Section 5.05(e) shall be determined at the Close of Business on the tenth Trading Day immediately following, but excluding, the Expiration Date but shall be given effect at the Open of Business on the Trading Day next succeeding the Expiration Date. In respect of any conversion during the 10 Trading Days commencing on the Trading Day next succeeding the Expiration Date, references within this Section 5.05(e) to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding, the relevant Conversion Date. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. (f) To the extent that the Company has a rights plan in effect upon conversion of the Notes, the Holders shall receive, in addition to the Common Stock received in connection with such conversion, the rights under the rights plan, unless prior to any conversion, the rights have separated from the Common Stock, in which case the Conversion Rate will be adjusted at the time of separation as if the Company distributed to all holders of Common Stock, shares of the Company’s capital stock, evidences of indebtedness or other assets or property as described in Section 5.05(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. (g) To the extent permitted by applicable law and applicable listing rules of the Nasdaq Global Select Market and any other securities exchange on which the Company’s securities are then listed, (i) the Company is permitted to increase the Conversion Rate of the Notes by any amount for a period of at least 20 Business Days so long as the increase is irrevocable during the period and the Board of Directors determines that such increase would be in the Company’s best interest and (ii) the Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of the Common Stock or rights to purchase shares of the Common St

Appears in 1 contract

Sources: First Supplemental Indenture (Fluidigm Corp)

Conversion Rate Adjustments. (a) The Conversion Rate and the Number of Underlying Shares shall be ~~adjusted from time~~ subject to ~~time by~~ adjustment, without duplication, under the Company upon the occurrence of any of the transactions described in this Section 4.04, except that the Company shall not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Class A Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 4.04 without having to convert their Securities as if they held a number of shares of Class A Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder.following circumstances: (ai) If the ~~Company exclusively issues shares~~ issuance of ~~Class A~~ Common Stock as a dividend or distribution ~~on shares~~ to all holders of ~~Class A~~ Common Stock, or ~~if the Company effects~~ a ~~share split~~ subdivision or ~~share~~ combination ~~on shares~~ of ~~Class A~~ Common Stock, in which event the Conversion Rate shall be adjusted based on the following formula: where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1~~ record date SR1 = the Conversion Rate in effect immediately after the ~~open of business on such Ex-Dividend Date or Effective Date;~~ record date OS0 = the number of shares of ~~Class A~~ Common Stock outstanding ~~immediately prior to~~ at the ~~open~~ close of business on ~~such Ex-Dividend Date or Effective Date (before~~ the record date prior to giving effect to ~~any~~ such ~~dividend, distribution, split or combination); and~~ event OS1 = the number of shares of ~~Class A~~ Common Stock that would be outstanding immediately ~~after giving effect~~ after, and solely as a result of, such event (ii) the issuance to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business on the Ex-Dividend 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. If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company issues to all or substantially all holders of ~~Class A~~ Common Stock ~~any~~ of certain rights, options or warrants entitling ~~them,~~ them for a period ~~of not more than 45~~ expiring 60 days ~~after the announcement date of such issuance, to subscribe for~~ or ~~purchase shares of Class A Common Stock at a price per share that is~~ less ~~than the average of the Last Reported Sale Prices of the Class A Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding~~ from 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 open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Class A Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.04(b) and for the purpose of Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of ~~Class A~~ Common Stock at less than ~~such average~~ the Current Market Price of ~~the Last Reported Sale Prices of the Class A~~ 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, and in determining the aggregate offering price of such shares of Class A 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 of its assets or property or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Class A Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment, if any, is provided for pursuant to Section 4.04(a) or Section 4.04(b), (ii) dividends or distributions paid exclusively in cash, as to which the provisions set forth in Section 4.04(d) below shall apply, and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “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 open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of such Holder’s Securities, at the same time and upon the same terms as holders of Class A Common Stock, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on the Class A 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, 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 open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the shares or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of the Class A Common Stock over the 10 consecutive Trading Day period beginning on, 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 Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, (x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared, effective as of the ~~date on~~ record date, in which the Board of Directors determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the Class A Common Stock, event the Conversion Rate shall be adjusted based on the following formula: where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Ex-Dividend Date for such dividend or distribution; CR1~~ record date SR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Class A 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 or substantially all holders of Class A Common Stock. Any increase pursuant to this Section 4.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the record date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Class A Common Stock, and the cash and value of any other consideration included in the payment per share of the Class A Common Stock exceeds the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Class A Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Expiration Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1~~ record date X = the total number of shares of ~~Class A~~ Common Stock ~~outstanding~~ issuable pursuant to such rights, options or warrants Y = the aggregate price payable to exercise such rights divided by the Average VWAP per share of the Common Stock over each of the 10 consecutive Trading Days prior to the Business Day immediately ~~after~~ preceding the ~~open~~ announcement of ~~business on~~the issuance of such rights, options or warrants However, the Conversion Rate shall be readjusted to the extent that any such rights, options or warrants are not exercised prior to their expiration.

Appears in 1 contract

Sources: Master Transaction Agreement

Conversion Rate Adjustments. The Conversion Rate shall be ~~adjusted~~ adjusted, from time to time by the ~~Company~~ Company, upon the occurrence of any of the ~~transactions described in this Section 4.04~~following events, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes have the right to participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of ~~the Class A~~ Common Stock and solely as a result of holding the ~~Securities~~Notes, in any of the transactions described in this Section ~~4.04~~ 4.05, without having to convert their ~~Securities~~ Notes as if they held a number of shares of ~~Class A~~ Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of ~~Securities~~ Notes held by such Holder. (a) If the Company exclusively issues shares of ~~Class A~~ Common Stock as a dividend or distribution on shares of ~~Class A~~ its Common Stock, or if the Company effects a share split or share ~~combination on shares of Class A Common Stock~~combination, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the ~~Effective Date~~ effective date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or ~~Effective Date~~effective date; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or ~~Effective Date (before giving effect to any such dividend, distribution, split or combination)~~effective date; and OS1 = the number of shares of ~~Class A~~ Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section ~~4.04(a~~4.05(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the ~~Effective Date~~ effective date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section ~~4.04(a~~4.05(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. The Company shall not pay any dividend or make any distribution on its Common Stock held in treasury, if any. (b) If the Company issues to all or substantially all holders of ~~Class A~~ its Common Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of ~~Class A~~ Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the ~~Class A~~ Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of ~~Class A~~ Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of ~~Class A~~ Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of ~~Class A~~ 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 ~~Class A~~ Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section ~~4.04(b~~4.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the ~~Class A~~ Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of ~~Class A~~ Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section ~~4.04(b~~4.05(b) and ~~for the purpose of~~ Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of ~~Class A~~ the Common Stock at less than such average of the Last Reported Sale Prices of the ~~Class A~~ Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of for such issuance, and in determining the aggregate offering price of such shares of ~~Class A~~ Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. The Company shall not issue any such rights, options or warrants in respect of its Common Stock held in treasury, if any. (c) If the Company distributes shares of its Capital Stock, evidences of its ~~indebtedness,~~ indebtedness or other ~~of its~~ assets or property of the Company or rights, options or warrants to acquire ~~shares of its~~ Capital Stock or other securities, to all or substantially all holders of the ~~Class A~~ Common Stock, excluding (i) dividends, distributions or issuances ~~as to which an adjustment~~covered in Section 4.05(a), ~~if any, is provided for pursuant to~~ Section ~~4.04(a~~4.05(b) or Section ~~4.04(b~~4.05(e), (ii) dividends or distributions paid exclusively in ~~cash, as to which the provisions set forth~~ cash covered in Section ~~4.04(d~~4.05(d) ~~below shall apply,~~ and (iii) Spin-~~Offs,~~ Offs as to which the provisions set forth below in this Section ~~4.04(c~~4.05(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire ~~shares of~~ Capital Stock or other ~~securities of the Company distributed with respect to each outstanding share of Class A Common Stock~~securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – FMV where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the ~~Class A~~ Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section ~~4.04(c~~4.05(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount ~~of such Holder’s Securities~~thereof, at the same time and upon the same terms as holders of ~~Class A~~ the Common ~~Stock~~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 ~~Class A~~ Common Stock equal to the Conversion Rate in effect on the ~~Record~~ Ex-Dividend Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 4.05(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section ~~4.04(c~~4.05(c) where there has been a payment of a dividend or other distribution on the ~~Class A~~ 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~~unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 x FMV0 + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~open~~ end of ~~business on~~ the ~~Ex-Dividend Date for such Spin-Off~~Valuation Period; CR1 = the Conversion Rate in effect immediately after the ~~open~~ end of ~~business on~~ the ~~Ex-Dividend Date for such Spin-Off~~Valuation Period; FMV0 = the average of the Last Reported Sale Prices of the ~~shares~~ Capital Stock or similar equity interest distributed to holders of the ~~Class A~~ Common Stock applicable to one share of the ~~Class A~~ Common Stock (determined by reference to the definition of Last Reported Sale Price as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period ~~beginning on~~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 ~~Class A~~ Common Stock over the Valuation Period. The ~~adjustment~~ increase to the Conversion Rate under the preceding paragraph shall ~~be determined~~ occur on the last Trading Day of the Valuation Period~~, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing,~~ ; provided that (x) in respect of any conversion of ~~Securities~~ Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, ~~references~~ the reference in the ~~portion of this Section 4.04(c) related~~ preceding paragraph to ~~Spin-Offs with respect to 10 consecutive Trading Days~~ “10” shall be deemed ~~to be~~ replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of for such Spin-Off to, ~~but excluding~~and including, ~~the~~ such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of ~~Securities~~ Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, ~~references~~ the reference to “10” in the ~~portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days~~ preceding paragraph 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, ~~the last~~ such Trading Day in determining the Conversion Rate as of such ~~Observation Period~~Trading Day. If ~~such~~ the distribution constituting the Spin-Off ~~does~~ is not ~~occur~~so paid or made, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the ~~Class A~~ Common ~~Stock~~Stock (other than distributions described in Section 4.05(e)), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the ~~Class A~~ 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 or substantially all~~ holders of ~~Class A~~ its Common Stock. Any increase pursuant to this Section ~~4.04(d~~4.05(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Class A Common Stock, and the cash and value of any other consideration included in the payment per share of the Class A Common Stock exceeds the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Class A Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on the Expiration Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of Class A Common Stock outstanding immediately after the open of business onthan

Appears in 1 contract

Sources: Indenture (Nuvasive Inc)

Conversion Rate Adjustments. (a) The Conversion Rate and the Number of Underlying Shares shall be ~~adjusted from time~~ subject to ~~time by~~ adjustment, without duplication, under the Company upon the occurrence of any of the transactions described in this Section 4.04, except that the Company shall not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Class A Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 4.04 without having to convert their Securities as if they held a number of shares of Class A Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder.following circumstances: (ai) If the ~~Company exclusively issues shares~~ issuance of ~~Class A~~ Common Stock as a dividend or distribution ~~on shares~~ to all holders of ~~Class A~~ Common Stock, or a subdivision or combination of Common Stock, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS1 / OS0) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date prior to giving effect to such event OS1 = the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event (ii) the issuance to all holders of Common Stock of certain rights, options or warrants entitling them for a period expiring 60 days or less from the date of issuance of such rights, options or warrants to purchase shares of Common Stock at less than the Current Market Price of Common Stock as of the record date, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS0 + X) / (OS0 + Y) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants Y = the aggregate price payable to exercise such rights divided by the Average VWAP per share of the Common Stock over each of the 10 consecutive Trading Days prior to the Business Day immediately preceding the announcement of the issuance of such rights, options or warrants However, the Conversion Rate shall be readjusted to the extent that any such rights, options or warrants are not exercised prior to their expiration. (iii) the dividend or other distribution to all holders of Common Stock of shares of capital stock of the Company (other than Common Stock), rights to acquire capital stock of the Company or evidences of the Company’s indebtedness or the Company’s assets (excluding any dividend, distribution or issuance covered by clauses (i) or (ii) above or (iv) or (v) below) in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x ▇▇▇ / (▇▇▇ — FMV) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date SP0 = the Current Market Price as of the record date FMV = the fair market value (as determined in good faith by the Board of Directors, whose good faith determination when evidenced by a Board Resolution shall be conclusive and binding), on the record date, of the shares of capital stock of the Company, rights to acquire capital stock, evidences of indebtedness or assets so distributed, expressed as an amount per share of Common Stock However, if the ~~Company effects~~ transaction that gives rise to an adjustment pursuant to this clause (iii) is one pursuant to which the payment of a ~~share split~~ dividend or ~~share combination~~ other distribution on Common Stock consist of shares of ~~Class A~~ capital stock of, or similar equity interests in, a subsidiary or other business unit of the Company, that are, or, when issued, will be, traded on a U.S. securities exchange, then the Conversion Rate shall instead be adjusted based on the following formula: SR1 = SR0 x (FMV0 + MP0) / MP0 where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date FMV0 = the Average VWAP of the capital stock or similar equity interests distributed to holders of Common Stock applicable to one share of Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock MP0 = the Average VWAP of the Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock (iv) the Company makes a distribution consisting exclusively of cash to all holders of Common Stock, excluding (A) any cash that is distributed as part of a distribution referred to in clause (iii) above, and (B) any consideration payable in connection with a tender or exchange offer made by the Company or any of the Company’s subsidiaries referred to in clause (v) below, in which event, the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x ▇▇▇ / (▇▇▇ — C) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1~~ record date SR1 = the Conversion Rate in effect immediately after the ~~open of business on such Ex-Dividend Date or Effective Date; OS0~~ record date SP0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS1 = the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business on the Ex-Dividend 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. If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective Current Market Price as of the record date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company issues to all or substantially all holders of Class A Common Stock any rights, options or warrants entitling them, for a period of not more than 45 days after the announcement date of such issuance, to subscribe for or purchase shares of Class A Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Class A 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 open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Class A Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.04(b) and for the purpose of Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A Common Stock at less than such average of the Last Reported Sale Prices of the Class A 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, and in determining the aggregate offering price of such shares of Class A 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 of its assets or property or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Class A Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment, if any, is provided for pursuant to Section 4.04(a) or Section 4.04(b), (ii) dividends or distributions paid exclusively in cash, as to which the provisions set forth in Section 4.04(d) below shall apply, and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “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 open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of such Holder’s Securities, at the same time and upon the same terms as holders of Class A Common Stock, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on the Class A 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, 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 open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the shares or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of the Class A Common Stock over the 10 consecutive Trading Day period beginning on, 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 Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, (x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the Class A Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Class A 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 of Common Stock the Company distributes to all or substantially all holders of Class A Common Stock. Any increase pursuant to this Section 4.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution.holders (ev) If the Company or ~~any~~ one or more of its ~~Subsidiaries makes a payment in respect~~ subsidiaries make purchases of Common Stock pursuant to a tender offer or exchange offer by the Company or a subsidiary of the Company for Common Stock to the ~~Class A Common Stock, and~~ extent that the cash and value of any other consideration included in the payment per share of ~~the Class A~~ Common Stock validly tendered or exchanged exceeds the ~~average~~ VWAP per share of ~~the Last Reported Sale Prices of the Class A~~ Common Stock ~~over the 10 consecutive Trading Day period commencing on, and including,~~ on the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders or exchanges may be made pursuant to such tender or exchange ~~offer~~offer (the “expiration date”), in which event the Conversion Rate ~~shall~~ will be ~~increased~~ adjusted based on the following formula: SR1 = SR0 x [(FMV + (SP1 x OS 1)] / (SP1 x OS0) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Trading Day next succeeding the Expiration Date; CR1~~ expiration date SR1 = the Conversion Rate in effect immediately after the ~~open~~ expiration date FMV = the fair market value (as determined in good faith by the Board of ~~business~~ Directors whose good faith determination when evidenced by a Board Resolution will be conclusive and binding), on the ~~Trading Day next succeeding the Expiration Date; AC =~~ expiration date, of the aggregate value of all cash and any other consideration ~~(as determined by the Board of Directors)~~ paid or payable for shares validly tendered or exchanged and not withdrawn as of ~~Class A~~ the expiration date (the “Purchased Shares”) OS1 = the number of shares of Common Stock ~~purchased in~~ outstanding as of the last time tenders or exchanges may be made pursuant to such tender or exchange ~~offer;~~ offer (the “Expiration Time”) less any Purchased Shares OS0 = the number of shares of ~~Class A~~ Common Stock outstanding ~~immediately prior to the open of business on~~ at the Expiration ~~Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1~~ Time, including any Purchased Shares SP1 = the ~~number~~ Average VWAP of ~~shares of Class A~~ the Common Stock ~~outstanding~~ over each of the 10 consecutive Trading Days commencing with the Trading Day immediately after the ~~open of business on~~expiration date.

Appears in 1 contract

Sources: Purchase Agreement (American International Group Inc)

Conversion Rate Adjustments. (a) The Conversion Rate and the Number of Underlying Shares shall be ~~adjusted from time~~ subject to ~~time by~~ adjustment, without duplication, under the Company upon the occurrence of any of the transactions described in this Section 4.04, except that the Company shall not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Class A Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 4.04 without having to convert their Securities as if they held a number of shares of Class A Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder.following circumstances: (ai) If the ~~Company exclusively issues shares~~ issuance of ~~Class A~~ Common Stock as a dividend or distribution ~~on shares~~ to all holders of ~~Class A~~ Common Stock, or a subdivision or combination of Common Stock, in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x (OS1 / OS0) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date prior to giving effect to such event OS1 = the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event (ii) the issuance to all holders of Common Stock of certain rights, options or warrants entitling them for a period expiring 60 days or less from the date of issuance of such rights, options or warrants to purchase shares of Common Stock at less than the Current Market Price of Common Stock as of the record date, in which event the Conversion Rate shall be adjusted based on the following formula: SR 1 = SR0 x (OS0 + X) / (OS0 + Y) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date OS0 = the number of shares of Common Stock outstanding at the close of business on the record date X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants Y = the aggregate price payable to exercise such rights divided by the Average VWAP per share of the Common Stock over each of the 10 consecutive Trading Days prior to the Business Day immediately preceding the announcement of the issuance of such rights, options or warrants However, the Conversion Rate shall be readjusted to the extent that any such rights, options or warrants are not exercised prior to their expiration. (iii) the dividend or other distribution to all holders of Common Stock of shares of capital stock of the Company (other than Common Stock), rights to acquire capital stock of the Company or evidences of the Company’s indebtedness or the Company’s assets (excluding any dividend, distribution or issuance covered by clauses (i) or (ii) above or (iv) or (v) below) in which event the Conversion Rate shall be adjusted based on the following formula: SR1 = SR0 x ▇▇▇ / (▇▇▇ — FMV) where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date SP0 = the Current Market Price as of the record date FMV = the fair market value (as determined in good faith by the Board of Directors, whose good faith determination when evidenced by a Board Resolution shall be conclusive and binding), on the record date, of the shares of capital stock of the Company, rights to acquire capital stock, evidences of indebtedness or assets so distributed, expressed as an amount per share of Common Stock However, if the ~~Company effects~~ transaction that gives rise to an adjustment pursuant to this clause (iii) is one pursuant to which the payment of a ~~share split~~ dividend or ~~share combination~~ other distribution on Common Stock consist of shares of ~~Class A~~ capital stock of, or similar equity interests in, a subsidiary or other business unit of the Company, that are, or, when issued, will be, traded on a U.S. securities exchange, then the Conversion Rate shall instead be adjusted based on the following formula: SR1 = SR0 x (FMV0 + MP0) / MP0 where, SR0 = the Conversion Rate in effect at the close of business on the record date SR1 = the Conversion Rate in effect immediately after the record date FMV0 = the Average VWAP of the capital stock or similar equity interests distributed to holders of Common Stock applicable to one share of Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock MP0 = the Average VWAP of the Common Stock over each of the 10 consecutive Trading Days commencing on and including the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to Common Stock on the NYSE or such other national or regional exchange or market that is at that time the principal market for the Common Stock (iv) the Company makes a distribution consisting exclusively of cash to all holders of Common Stock, excluding (a) any cash that is distributed as part of a distribution referred to in clause (iii) above, and (b) any consideration payable in connection with a tender or exchange offer made by the Company or any of the Company’s subsidiaries referred to in clause (v) below, in which event, the Conversion Rate shall be adjusted based on the following formula: SR 1 = SR 0 x SP 0 / (SP 0 - C) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; CR1~~ record date SR1 = the Conversion Rate in effect immediately after the ~~open of business on such Ex-Dividend Date or Effective Date; OS0~~ record date SP0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS1 = the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 4.04(a) shall become effective immediately after the open of business on the Ex-Dividend 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. If any dividend or distribution of the type described in this Section 4.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective Current Market Price as of the record date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company issues to all or substantially all holders of Class A Common Stock any rights, options or warrants entitling them, for a period of not more than 45 days after the announcement date of such issuance, to subscribe for or purchase shares of Class A Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Class A 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 open of business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; OS0 = the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 4.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Class A Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 4.04(b) and for the purpose of Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A Common Stock at less than such average of the Last Reported Sale Prices of the Class A 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, and in determining the aggregate offering price of such shares of Class A 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 of its assets or property or rights, options or warrants to acquire shares of its Capital Stock or other securities, to all or substantially all holders of the Class A Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment, if any, is provided for pursuant to Section 4.04(a) or Section 4.04(b), (ii) dividends or distributions paid exclusively in cash, as to which the provisions set forth in Section 4.04(d) below shall apply, and (iii) Spin-Offs, as to which the provisions set forth below in this Section 4.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire shares of Capital Stock or other securities of the Company distributed with respect to each outstanding share of Class A Common Stock, the “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 open of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 4.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of such Holder’s Securities, at the same time and upon the same terms as holders of Class A Common Stock, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 4.04(c) where there has been a payment of a dividend or other distribution on the Class A 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, 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 open of business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the shares or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of the Class A Common Stock over the 10 consecutive Trading Day period beginning on, 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 Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period, but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, (x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 4.04(c) related to Spin-Offs with respect to 10 consecutive Trading Days 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, such Trading Day in determining the Conversion Rate as of such Trading Day. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Observation Period in respect of a conversion of Securities, references in the portion of this Section 4.04(c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to be the 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 determines not to consummate such Spin-Off. For purposes of Section 4.04(a), Section 4.04(b) and this Section 4.04(c), if any dividend or distribution to which this Section 4.04(c) is applicable also includes one or both of: (A) a dividend or distribution of shares of Class A Common Stock to which Section 4.04(a) is applicable (the “Clause A Distribution”); or (B) a dividend or distribution of rights, options or warrants to which Section 4.04(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 4.04(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 4.04(a) and Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Class A Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b). (d) If any cash dividend or distribution is made to all or substantially all holders of the Class A Common Stock, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Class A 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 of Common Stock the Company distributes to all or substantially all holders of Class A Common Stock. Any increase pursuant to this Section 4.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Class A Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution.holders (ev) If the Company or ~~any~~ one or more of its ~~Subsidiaries makes a payment in respect~~ subsidiaries make purchases of Common Stock pursuant to a tender offer or exchange offer by the Company or a subsidiary of the Company for Common Stock to the ~~Class A Common Stock, and~~ extent that the cash and value of any other consideration included in the payment per share of ~~the Class A~~ Common Stock validly tendered or exchanged exceeds the ~~average~~ VWAP per share of ~~the Last Reported Sale Prices of the Class A~~ Common Stock ~~over the 10 consecutive Trading Day period commencing on, and including,~~ on the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders or exchanges may be made pursuant to such tender or exchange ~~offer~~offer (the “expiration date”), in which event the Conversion Rate ~~shall~~ will be ~~increased~~ adjusted based on the following formula: SR 1 = SR0 x [(FMV + (SP1 x OS1)] / (SP1 x OS0) where, ~~CR0~~ SR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~open~~ close of business on the ~~Trading Day next succeeding the Expiration Date; CR1~~ expiration date SR1 = the Conversion Rate in effect immediately after the ~~open~~ expiration date FMV = the fair market value (as determined in good faith by the Board of ~~business~~ Directors whose good faith determination when evidenced by a Board Resolution will be conclusive and binding), on the ~~Trading Day next succeeding the Expiration Date; AC =~~ expiration date, of the aggregate value of all cash and any other consideration ~~(as determined by the Board of Directors)~~ paid or payable for shares validly tendered or exchanged and not withdrawn as of ~~Class A~~ the expiration date (the “Purchased Shares”) OS1 = the number of shares of Common Stock ~~purchased in~~ outstanding as of the last time tenders or exchanges may be made pursuant to such tender or exchange ~~offer;~~ offer (the “Expiration Time”) less any Purchased Shares OS0 = the number of shares of ~~Class A~~ Common Stock outstanding ~~immediately prior to the open of business on~~ at the Expiration ~~Date (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1~~ Time, including any Purchased Shares SP1 = the ~~number~~ Average VWAP of ~~shares of Class A~~ the Common Stock ~~outstanding~~ over each of the 10 consecutive Trading Days commencing with the Trading Day immediately after the ~~open of business on~~expiration date.

Appears in 1 contract

Sources: Master Transaction Agreement (American International Group Inc)

Common use of Conversion Rate Adjustments Clause in Contracts