Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows: (a) if and whenever at any time during the Adjustment Period, the Corporation shall: (i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; or (ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur; (b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that (i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation; (ii) such adjustment shall be made successively whenever such a record date is fixed; (iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be; (c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that: (i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation; (ii) such adjustment shall be made successively whenever such a record date is fixed; (iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be; (d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price; (e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be; (f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1. (g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 8 contracts
Sources: Convertible Debenture (Cedara Software Corp), Convertible Debenture (Cedara Software Corp), Convertible Debenture (Cedara Software Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever If at any time during after the Adjustment Perioddate of this Debenture, Maker shall subdivide its outstanding Shares, the Corporation shall:
(i) subdivide, redivide Conversion Price and Mandatory Conversion Threshold in effect immediately prior to such issuance or change its subdivision shall be proportionately reduced. If the outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares shall be combined into a smaller number of such shares; , the Conversion Price and Mandatory Conversion Threshold in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator combination shall be the total number of Common Shares outstanding immediately after such dateproportionately increased. Such adjustment The Conversion Price and Mandatory Conversion Threshold also shall be made successively whenever any appropriately adjusted in the event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during of the Adjustment Periodsubsequent issuance of Shares or securities convertible into Shares, the Corporation shall fix a record date for by way of security dividend or distribution, the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, distribution of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether other class of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:assets.
(ib) Except as set forth herein, if at any time after the date of this Third Amended and Restated Debenture, the Maker shall issue or sell Common Shares owned by Stock, or held warrants or options exercisable for the account of the Corporation Common Stock, preferred stock convertible into Common Stock, or any subsidiary shall be deemed not other securities convertible into Common Stock, in a capital raising transaction, at a consideration per share, or exercise or conversion price per share, as applicable, less than the Conversion Price in effect immediately prior to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so madeissuance, the Conversion Price shall be readjusted reduced to such issuance price. For purposes of determining the issuance price, the amount of consideration paid upon issuance of the security and any additional consideration to be paid upon conversion or exercise of the same security shall be combined to determine the total issuance price. The following securities shall be excluded from the foregoing and shall not result in any change to the Conversion Price: (i) capital stock, options or convertible securities issued to directors, officers, employees or consultants of the Maker in connection with their service as directors of the Maker, their employment by the Maker or their retention as consultants by the Maker, (ii) shares of Common Stock issued upon the conversion or exercise of options or convertible securities that were issued and outstanding on the date immediately preceding the date of this Third Amended and Restated Debenture, provided such securities are not amended after the date of this Third Amended and Restated Debenture to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof (iii) securities issued pursuant to the Third Amended and Restated Debenture and securities issued upon the exercise or conversion of those securities, (iv) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution on shares of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Conversion Price pursuant to the other provisions of this Third Amended and Restated Debenture), and (v) capital stock, options or convertible securities issued as consideration for an acquisition or strategic transaction approved by a majority of the disinterested directors of the Maker, provided that any such issuance shall only be a person or entity (or to the equityholders of an entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Maker and shall provide to the Maker additional benefits in addition to the investment of funds, but shall not, for the purposes of this clause (v), include a transaction in which the Maker is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Notwithstanding the foregoing, no adjustment to the Conversion Price which would then shall be made as a result of the Maker’s sale of securities through February 1, 2024.
(c) No adjustment in effect if such record date had not been fixed or to the Conversion Price which and/or the number of shares of Common Stock subject to the Debenture need be made if such adjustment would then be result in effect based upon such a change in the Conversion Price of less than one cent ($0.01) or a change in the number of subject shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;less than one-tenth (1/10th) of a share.
(d) if and whenever at Upon any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise adjustment of the Conversion RightPrice hereunder, be entitled Maker will compute the adjustment and prepare and furnish to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and Purchaser a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no certificate setting forth such adjustment shall be made if, subject to and showing in detail the prior approval of applicable stock exchanges facts upon which the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1is based.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 6 contracts
Sources: Convertible Debenture Subscription Agreement (Navy Capital Green Management, LLC), Subscription Agreement (CLS Holdings USA, Inc.), Convertible Debenture (CLS Holdings USA, Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodCompany shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, the Corporation shall:
(i2) subdividemake a distribution in shares of Common Stock to holders of Common Stock, redivide or change (3) subdivide its outstanding shares of Common Shares Stock into a greater number of such shares; or
shares of Common Stock or (ii4) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect on immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of a dividend or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination a subdivision or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;combination.
(b) if and whenever at any time during In case the Adjustment Period, Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the Corporation shall fix a record date for the issuance determination of rights, options holders of Common Stock entitled to receive such rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period and expiring not more than 45 days after such record date, ) to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it same shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less plus the fair market value number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (as determined by or the Directors, subject to Section 7.4 aggregate conversion price of the convertible securities so offered) would purchase at such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company (other than Common Stock referred to in subsection (a) above), evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such Twenty Day Weighted Average Trading distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided that:
in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company’s capital stock (other than those referred to in subsection (b) above) (“Rights”) to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 5.06, make proper provision so that each holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the “Conversion Shares”), a number of Rights to be determined as follows: (i) Common Shares owned by if such conversion occurs on or held prior to the date for the account distribution to the holders of Rights of separate certificates evidencing such Rights (the Corporation or any subsidiary shall be deemed not “Distribution Date”), the same number of Rights to be outstanding for which a holder of a number of shares of Common Stock equal to the purpose number of any Conversion Shares is entitled at the time of such computation;
conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such adjustment shall be made successively whenever conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. In the event the Company implements a shareholder rights plan, such a record date is fixed;rights plan must provide that upon conversion of the Securities the holders will receive, in addition to the Common Stock issuable upon such conversion, such rights (whether or not such rights have separated from the Common Stock at the time of such conversion).
(iiid) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the extent Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the shareholders entitled to such distribution is not so (the “Distribution Record Date”) and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be readjusted reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which would then the numerator shall be the Current Market Price per share (determined as provided in effect if paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such record date had not been fixed or cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the Conversion aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price which would then per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in effect based upon respect of such shares tender offer or rightsother negotiated transaction and the amount of such Excess Payment, options together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or warrants retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or evidences expiration of indebtedness or assets actually distributedsuch current tender offer, as the case may be;
be (the “Purchase Date”), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) if and whenever at any time during of this Section or this paragraph (e) has been made, exceeds 15% of the Adjustment Period, there is a reclassification product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Shares or a capital reorganization of Stock on the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of Purchase Date multiplied by the number of shares then sought of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be acquired the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by it, the number of shares of Common Shares or other securities or property Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Corporation or Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as Daily Market Prices for the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, shorter of (i) 30 consecutive Business Days ending on the record last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date or next succeeding the effective date thereof, as the case may be, the Holder had been the registered holder first public announcement of the number issuance of Common Shares sought such rights or such warrants or such other distribution or such negotiated transaction through such last full Trading Day on the exchange or market referred to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made in determining such Daily Market Prices prior to the Conversion Price;time of determination.
(eg) in In any case in which this Section 7.1(b) or 7.1(c) 5.06 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of any Security converted after such record date the shares of Common Shares Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the applicable record date or effective date, as the case may be, by virtue basis of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shallprior to adjustment; and, in lieu of the case shares the issuance of adjustments which is so deferred, the Company shall issue or cause its transfer agents to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues issue due bills or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion appropriate evidence of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in right to receive such provisions for the benefit of the Holder as the Directors deem appropriateshares.
Appears in 5 contracts
Sources: Indenture (Intevac Inc), Indenture (Intevac Inc), Indenture (Intevac Inc)
Adjustment of Conversion Price. The Subject to the requirements of the Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during the Adjustment Period, the Corporation Company shall:
(i) fix a record date for the issue of, or issue, Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend or otherwise;
(ii) fix a record date for the distribution to, or make a distribution to, the holders of all or substantially all of the outstanding Common Shares payable in Common Shares or securities exchangeable or exercisable for or convertible into Common Shares;
(iii) subdivide, redivide re-divide or change its then outstanding Common Shares into a greater number of such sharesCommon Shares; or
(iiiv) reduce, combine or consolidate its then outstanding Common Shares into a smaller lesser number of Common Shares, (any of such shares; events in Sections 6.5(a)(i), 6.5(a)(ii), 6.5(a)(iii) and 6.5(a)(iv) above being herein called a "Common Share Reorganization"), then the Conversion Price shall be adjusted on the earlier of the record date on which holders of Common Shares are determined for the purposes of the Common Share Reorganization and the effective date of the Common Share Reorganization to the amount determined by multiplying the Conversion Price in effect on the immediately prior to such record date or effective date of such subdivision, redivision, change, reduction, combination or consolidationdate, as the case may be, shall in the case of the events referred to in by a fraction:
(i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction numerator of which the numerator shall be the total number of Common Shares outstanding immediately prior on such record date or effective date, as the case may be, before giving effect to such date and Common Share Reorganization; and
(ii) the denominator of which shall be the total number of Common Shares which will be outstanding immediately after giving effect to such Common Share Reorganization (including in the case of a distribution of securities exchangeable or exercisable for or convertible into Common Shares, the number of Common Shares that would have been outstanding had such securities been exchanged or exercised for or converted into Common Shares on such date). Such To the extent that any adjustment in the Conversion Price occurs pursuant to this Section 6.5(a) as a result of the fixing by the Company of a record date for the distribution of securities exchangeable or exercisable for or convertible into Common Shares, the Conversion Price shall be made successively whenever readjusted immediately after the expiry of any event referred relevant exchange, exercise or conversion right to the Conversion Price which would then be in this Section 7.1(a) effect based upon the number of Common Shares actually issued and remaining issuable after such expiry and shall occur;be further readjusted in such manner upon the expiry of any further such right.
(b) if and whenever If at any time during the Adjustment Period, the Corporation Company shall fix a record date for the issuance issue or distribution to the holders of all or substantially all of the outstanding Common Shares of rights, options or warrants pursuant to all or substantially all the which such holders of its outstanding Common Shares entitling themare entitled, for during a period expiring not more than 45 days after the record date for such record dateissue (such period being the "Rights Period"), to subscribe for or purchase Common Shares (or securities exchangeable or exercisable for or convertible or exchangeable into Common Shares) Shares at a price per share to the holder (or having a in the case of securities exchangeable or exercisable for or convertible into Common Shares, at an exchange, exercise or conversion or exchange price per share) at the date of issue of such securities of less than 95% of the Twenty Day Weighted Average Trading Current Market Price of the Common Shares on such record datedate (any of such events being called a "Rights Offering"), the Conversion Price shall be adjusted effective immediately after such the record date so that it shall equal for such Rights Offering to the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which the numerator shall be the total aggregate of
(1) the number of Common Shares outstanding on the record date for the Rights Offering, and
(2) the quotient determined by dividing
(A) either (a) the product of the number of Common Shares offered during the Rights Period pursuant to the Rights Offering and the price at which such Common Shares are offered, or, (b) the product of the exchange, exercise or conversion price of the securities so offered and the number of Common Shares for or into which the securities offered pursuant to the Rights Offering may be exchanged, exercised or converted, as the case may be, by
(B) the Current Market Price of the Common Shares as of the record date for the Rights Offering; and
(ii) the denominator of which shall be the aggregate of the number of Common Shares outstanding on such record date multiplied and the number of Common Shares offered pursuant to the Rights Offering (including in the case of the issue or distribution of securities exchangeable or exercisable for or convertible into Common Shares the number of Common Shares for or into which such securities may be exchanged, exercised or converted). If by the Twenty Day Weighted Average Trading Price on such record date, less terms of the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options options, or warrantswarrants referred to in this Section 6.5(b), and there is more than one purchase, exchange, exercise or conversion price per Common Share, the aggregate price of which the denominator shall be the total number of additional Common Shares outstanding offered for subscription or purchase, or the aggregate exchange, exercise or conversion price of the exchangeable, exercisable or convertible securities so offered, shall be calculated for purposes of the adjustment on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any the basis of the lowest purchase, exchange, exercise or conversion price per Common Share, as the case may be. Any Common Shares owned by or held for the account of the corporation or any subsidiary Company shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to calculation. To the extent that any such adjustment in the Conversion Price occurs pursuant to this Section 6.5(b) as a result of the fixing by the Company of a record date for the issue or distribution of rights, options or warrants are not exercised prior referred to the expiration thereofin this Section 6.5(b), the Conversion Price shall be readjusted immediately after the expiry of any relevant exchange, exercise or conversion right to the Conversion Price which would then be in effect based upon the number of Common Shares actually issued and remaining issuable after such expiry and shall be further readjusted in such manner upon the expiry of any further such right. To the extent that such Rights Offering is not ultimately so made, the Conversion Price shall then be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed fixed.
(c) If at any time during the Adjustment Period the Company shall fix a record date for the issue or distribution to the holders of all or substantially all of the outstanding Common Shares of:
(i) shares of the Company of any class other than Common Shares;
(ii) rights, options or warrants to acquire Common Shares or securities exchangeable or exercisable for or convertible into Common Shares (other than rights, options or warrants pursuant to which holders of Common Shares are entitled, during a period expiring not more than 45 days after the record date for such issue, to subscribe for or purchase Common Shares or securities exchangeable or exercisable for or convertible into Common Shares at a price per share (or in the case of securities exchangeable or exercisable for or convertible into Common Shares at an exchange, exercise or conversion price per share) on the record date for the issue of such securities to the holder of at least 95% of the Current Market Price of the Common Shares on such record date);
(iii) evidences of indebtedness of the Company; or
(iv) any property or other assets of the Company; and if such issue or distribution does not constitute a Common Share Reorganization or a Rights Offering (any of such non-excluded events being herein called a "Special Distribution"), the Conversion Price shall be adjusted effective immediately after the record date for the Special Distribution to the amount determined by multiplying the Conversion Price by a fraction:
(1) the numerator of which shall be the difference between
(A) the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date, and
(B) the fair value, as determined by the directors of the Company and subject to approval by the TSXV, to the holders of Common Shares of the shares, rights, options, warrants, evidences of indebtedness or property or assets to be issued or distributed in the Special Distribution, and
(2) the denominator of which shall be the product obtained by multiplying the number of Common Shares outstanding on such record date by the Current Market Price of the Common Shares on such record date. Any Common Shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purpose of such calculation. To the extent that any adjustment in the Conversion Price occurs pursuant to this Section 6.5(c) as a result of the fixing by the Company of a record date for the issue or distribution of rights, options or warrants to acquire Common Shares or securities exchangeable or exercisable for or convertible into Common Shares referred to in this Section 6.5(c), the Conversion Price shall be readjusted immediately after the expiry of any relevant exchange, exercise or conversion right to the amount which would then be in effect based upon the number of Common Shares issued and remaining issuable after such expiry and shall be further readjusted in such manner upon the expiry of any further such right.
(d) If at any time during the Adjustment Period there shall occur:
(i) a reclassification or redesignation of the Common Shares, a change of the Common Shares into other shares or securities convertible or exchangeable into any other capital reorganization involving the Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may beShares other than a Common Share Reorganization;
(cii) if a consolidation, amalgamation, arrangement or merger of the Company with or into another body corporate which results in a reclassification or redesignation of the Common Shares or a change of the Common Shares into other shares or securities; or
(iii) the transfer of the undertaking or assets of the Company as an entirety or substantially as an entirety to another corporation or entity; (any of such events being called a "Capital Reorganization"), after the effective date of the Capital Reorganization the Debentureholder shall be entitled to receive, and whenever shall accept, for the same aggregate consideration, upon the conversion of the Debentures, in lieu of the number of Units to which the Debentureholder was theretofore entitled upon the conversion of the Debentures, the kind and aggregate number of shares and other securities or property resulting from the Capital Reorganization which the Debentureholder would have been entitled to receive as a result of the Capital Reorganization if, on the effective date thereof, the Debentureholder had been the registered holder of the number of Units which the Debentureholders was theretofore entitled to purchase or receive upon the conversion of the Debentures. If necessary, as a result of any such Capital Reorganization, appropriate adjustments shall be made in the application of the provisions of this Indenture with respect to the rights and interests thereafter of the Debentureholder to the end that the provisions shall thereafter correspondingly be made applicable as nearly as may reasonably be possible in relation to any shares or other securities or property thereafter deliverable upon the conversion of the Debentures.
(e) If at any time during the Adjustment Period the Corporation Company shall fix a record date for the making payment of a cash dividend or distribution to the holders of all or substantially all of the holders of its outstanding Common Shares (other than dividends paid in the ordinary course, once initiated under a dividend policy approved by the board of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividendsdirectors), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by difference between
(1) the Twenty Day Weighted Average Trading Current Market Price on such record date, less and
(2) the fair market value (as determined by the Directors, subject amount in cash per Common Share distributed to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number holders of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;Shares, and
(ii) the denominator of which shall be the Current Market Price on such record date. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such cash dividend or distribution is not so madepaid, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or fixed.
(f) Any adjustment to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification exercise price of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidationWarrants (but for certainty, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, not the number of Common Shares or other securities or property of underlying the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment Warrants) shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder determined in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit terms of the Holder as Warrant Indenture and for greater certainty, such adjustments shall occur whether or not the Directors deem appropriateapplicable Debentures have been converted at the time of the event triggering such adjustment.
Appears in 4 contracts
Sources: Convertible Debenture Indenture (Poet Technologies Inc.), Convertible Debenture Indenture (Poet Technologies Inc.), Convertible Debenture Indenture (Poet Technologies Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever If at any time during after the Adjustment Perioddate of this Debenture, the Corporation shall:
(i) subdivide, redivide or change Company shall subdivide its outstanding Common Shares, the Conversion Price in effect immediately prior to such issuance or subdivision shall be proportionately reduced. If the outstanding Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares shall be combined into a smaller number of such shares; , the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator combination shall be the total number of Common Shares outstanding immediately after such dateproportionately increased. Such adjustment The Conversion Price also shall be made successively whenever any appropriately adjusted in the event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during of the Adjustment Periodsubsequent issuance of Shares or securities convertible into Shares, the Corporation shall fix a record date for by way of security dividend or distribution, the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, distribution of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether other class of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:assets.
(ib) Except as set forth herein, if at any time after the date of this Debenture, the Maker shall issue or sell Common Shares owned by Stock, or held warrants or options exercisable for the account of the Corporation Common Stock, preferred stock convertible into Common Stock, or any subsidiary shall be deemed not other securities convertible into Common Stock, in a capital raising transaction, at a consideration per share, or exercise or conversion price per share, as applicable, less than the Conversion Price in effect immediately prior to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so madeissuance, the Conversion Price shall be readjusted reduced to such issuance price. For purposes of determining the issuance price, the amount of consideration paid upon issuance of the security and any additional consideration to be paid upon conversion or exercise of the same security shall be combined to determine the total issuance price. The following securities shall be excluded from the foregoing and shall not result in any change to the Conversion Price: (i) capital stock, options or convertible securities issued to directors, officers, employees or consultants of the Maker in connection with their service as directors of the Maker, their employment by the Maker or their retention as consultants by the Maker, (ii) shares of Common Stock issued upon the conversion or exercise of options or convertible securities that were issued and outstanding on the date immediately preceding the date of this Debenture, provided such securities are not amended after the date of this Debenture to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof (iii) securities issued pursuant to the Debenture and securities issued upon the exercise or conversion of those securities, (iv) shares of Common Stock issued or issuable by reason of a dividend, stock split or other distribution on shares of Common Stock (but only to the extent that such a dividend, split or distribution results in an adjustment in the Conversion Price which would then pursuant to the other provisions of this Debenture), and (v) capital stock, options or convertible securities issued as consideration for an acquisition or strategic transaction approved by a majority of the disinterested directors of the Maker, provided that any such issuance shall only be in effect if such record date had not been fixed a person or entity (or to the equityholders of an entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Maker and shall provide to the Maker additional benefits in addition to the investment of funds, but shall not, for the purposes of this clause (v), include a transaction in which the Maker is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
(c) No adjustment in the Conversion Price which and/or the number of shares of Common Stock subject to the Debenture need be made if such adjustment would then be result in effect based upon such a change in the Conversion Price of less than one cent ($0.01) or a change in the number of subject shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;less than one-tenth (1/10th) of a share.
(d) if and whenever at Upon any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise adjustment of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by itPrice hereunder, the number of Common Shares or other securities or property of Company will compute the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or adjustment and prepare and furnish to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and Purchaser a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no certificate setting forth such adjustment shall be made if, subject to and showing in detail the prior approval of applicable stock exchanges facts upon which the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1is based.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 4 contracts
Sources: Convertible Debenture (Navy Capital Green Management LLC), Convertible Debenture (CLS Holdings USA, Inc.), Convertible Debenture (CLS Holdings USA, Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodCompany shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, the Corporation shall:
(i2) subdividemake a distribution in shares of Common Stock to holders of Common Stock, redivide or change (3) subdivide its outstanding shares of Common Shares Stock into a greater number of such shares; or
shares of Common Stock or (ii4) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect on immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of a dividend or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination a subdivision or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;combination.
(b) if and whenever at any time during In case the Adjustment Period, Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the Corporation shall fix a record date for the issuance determination of rights, options holders of Common Stock entitled to receive such rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period and expiring not more than 45 days after such record date, ) to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it same shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less plus the fair market value number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (as determined by or the Directors, subject to Section 7.4 aggregate conversion price of the convertible securities so offered) would purchase at such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such Twenty Day Weighted Average Trading distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided that:
in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 5.06, make proper provision so that each holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) Common Shares owned by if such conversion occurs on or held prior to the date for the account distribution to the holders of Rights of separate certificates evidencing such Rights (the Corporation or any subsidiary shall be deemed not "Distribution Date"), the same number of Rights to be outstanding for which a holder of a number of shares of Common Stock equal to the purpose number of any Conversion Shares is entitled at the time of such computation;
conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such adjustment shall be made successively whenever such conversion occurs after the Distribution Date, the same number of Rights to which a record date is fixed;holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(iiid) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the extent Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution is not so (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be readjusted reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which would then the numerator shall be the Current Market Price per share (determined as provided in effect if paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such record date had not been fixed or cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the Conversion aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price which would then per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in effect based upon respect of such shares tender offer or rightsother negotiated transaction and the amount of such Excess Payment, options together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or warrants retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or evidences expiration of indebtedness or assets actually distributedsuch current tender offer, as the case may be;
be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) if and whenever at any time during of this Section or this paragraph (e) has been made, exceeds 15% of the Adjustment Period, there is a reclassification product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Shares or a capital reorganization of Stock on the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of Purchase Date multiplied by the number of shares then sought to be acquired by itof Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may Conversion Price shall be made, as the case may be, reduced so that the Holder would have been entitled to receive on same shall equal the price determined by multiplying such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable record or to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective date, as immediately prior to the case may be;opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the adjustments provided average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in this Section 7.1 are cumulative, and shall, in the case of adjustments determining such Daily Market Prices prior to the Conversion Price be computed time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions time of this Section 7.1determination.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 3 contracts
Sources: Indenture (Sabratek Corp), Indenture (Tel Save Holdings Inc), Indenture (Tel Save Holdings Inc)
Adjustment of Conversion Price. The Optional Conversion Price or Forced Conversion Price, as applicable (each of which is referred to in this Section 4.5 as the “Conversion Price”), in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date, the Corporation Company shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; orShares;
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such sharesShares;
(iii) issue Shares (or securities convertible into or exchangeable for Shares) to the holders of all or substantially all of the outstanding Shares by way of stock dividend; or
(iv) make a distribution on its outstanding Shares payable in Shares or securities exchangeable for or convertible into Shares, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares (or securities convertible into or exchangeable for Shares) by way of a stock dividend or other distribution, as the case may be, shall shall, in the case of the events referred to in Sections 4.5(a)(i), (iiii) and (iv) above, be decreased in proportion to the increase in the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend (including, in the case where securities convertible into or exchangeable for Shares are issued, the number of Shares that would have been outstanding had such securities been converted into or exchanged for Shares on such effective or record date) or shall, in the case of the events referred to in (iiSection 4.5(a)(ii) above, be increased in proportion to the decrease in the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such or record date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a4.5(a) shall occur;. Any such issue of Shares (or securities convertible into or exchangeable for Shares) by way of a stock dividend or other distribution shall be deemed to have been made on the record date for the stock dividend or other distribution for the purpose of calculating the number of outstanding Shares under Sections 4.5(b) and (g); to the extent that any such securities are not converted into or exchanged for Shares prior to the expiration of the conversion or exchange right, the Conversion Price shall be readjusted effective as at the date of such expiration to the Conversion Price which would then be in effect based upon the number of Shares actually issued on the exercise of such conversion or exchange right.
(b) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date, the Corporation Company shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 forty-five (45) days after such date of issue (such period from the record datedate to the date of expiry being referred to in this Section 4.5(b) as the “Rights Period”), to subscribe for or purchase Common Shares (or securities convertible into or exchangeable into Common for Shares) at a (such subscription price per share Share (inclusive of any cost of acquisition of securities exchangeable for or having convertible into Shares in addition to any direct cost of Shares) being referred to in this Section 4.5(b) as the “Per Share Cost”), the Borrowers shall give written notice to the Purchaser with respect thereto (any of such events herein referred to as a “Rights Offering”), and the Purchaser shall have fifteen (15) days after receipt of such notice (but prior to the Maturity Date or the date fixed for redemption of this Note) to elect to convert any or all of the Principal Amount of this Note into Shares at the then applicable Conversion Price and otherwise on terms and conditions set out in this Note. If the Purchaser validly elects to convert any or all of the Principal Amount of this Note, such conversion shall occur immediately prior to the record date for the issuance of such rights, options or exchange price per share) less than warrants. If the Twenty Day Weighted Average Trading Price on such record datePurchaser elects not to convert any of the Principal Amount of this Note, there shall continue to be an adjustment to the Conversion Price shall as a result of the issuance of such rights, options or warrants, in the manner hereinafter provided. The Conversion Price will be adjusted effective immediately after such record date so that it shall equal the amount end of the Rights Period to a price determined by multiplying the Conversion Price in effect on such record date immediately prior to the end of the Rights Period by a fraction, :
(i) the numerator of which is the numerator shall be aggregate of:
(A) the total number of Common Shares outstanding on such as of the record date multiplied by for the Twenty Day Weighted Average Trading Price on such record date, less Rights Offering; and
(B) the fair market value (as number determined by dividing the Directors, subject product of the Per Share Cost and:
1. where the event giving rise to the application of this Section 7.44.5(b) was the issue of such rights, options or warrantswarrants to the holders of Shares under which such holders are entitled to subscribe for or purchase additional Shares, and the number of Shares so subscribed for or purchased during the Rights Period, or
2. where the event giving rise to the application of this Section 4.5(b) was the issue of rights, options or warrants to the holders of Shares under which such holders are entitled to subscribe for or purchase securities exchangeable for or convertible into Shares, the number of Shares for which those securities so subscribed for or purchased during the Rights Period could have been exchanged or into which they could have been converted during the Rights Period, by the trading price of the Shares on the Canadian Securities Exchange (or such other recognized stock exchange or quotation on which the Shares are listed for trading) (the “Current Market Price”) as of the record date for the Rights Offering; and
(ii) the denominator of which is:
(A) in the denominator shall be case described in subparagraph 4.5(b)(i)(B)(1), the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided thatoutstanding, or
(iB) any Common in the case described in subparagraph 4.5(b)(i)(B)(2), the number of Shares that would be outstanding if all the Shares described in subparagraph 4.5(b)(i)(B)(2) had been issued, as at the end of the Rights Period.
(c) Any Shares owned by or held for the account of the corporation Company or any subsidiary shall (as defined in the Securities Act (British Columbia)) of the Company will be deemed not to be outstanding for the purpose of any such computation;.
(iid) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to If by the extent that any such terms of the rights, options or warrants referred to in Section 4.5(b), there is more than one purchase, conversion or exchange price per Share, the aggregate price of the total number of additional Shares offered for subscription or purchase, or the aggregate conversion or exchange price of the convertible securities so offered, will be calculated for purposes of the adjustment on the basis of:
(1) the lowest purchase, conversion or exchange price per Share, as the case may be, if such price is applicable to all Shares which are not exercised prior subject to the expiration thereofrights, options or warrants, and
(2) the average purchase, conversion or exchange price per Share, as the case may be, if the applicable price is determined by reference to the number of Shares acquired.
(e) To the extent that any adjustment in the Conversion Price occurs pursuant to this Section 4.5(b) as a result of the fixing by the Company of a record date for the distribution of rights, options or warrants referred to in this Section 4.5(b), the Conversion Price shall will be readjusted to immediately after the Conversion Price which would then be in effect if such record date had not been fixed expiration of any relevant exchange, conversion or exercise right to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued and remaining issuable after such expiration, and will be further readjusted in such manner upon the exercise expiration of any further such rights, options or warrants, as the case may be;right.
(cf) if [Intentionally Omitted].
(g) If and whenever at any time during prior to the Adjustment Period Maturity Date, the Corporation Company shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Shares (or any other corporation (including stock dividendsthan securities convertible into or exchangeable for Shares), or (ii) rights, options or warrants (excluding those other than rights, options or warrants referred to in Section 7.1(b4.5(b)); , or (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashin each case, other than dividends paid in the ordinary course) of the Corporation, then, in each such case, the Borrowers shall give written notice to the Purchaser with respect thereto, and the Purchaser shall have fifteen (15) days after receipt of such notice to elect to convert any or all of the Principal Amount of this Note into Shares at the then applicable Conversion Price and otherwise on terms and conditions set out in this Note. If the Purchaser elects to convert any or all of the Principal Amount of this Note, such conversion shall occur immediately prior to the record date for the making of such distribution. If the Purchaser elects not to convert any of the Principal Amount of this Note, there shall continue to be an adjustment to the Conversion Price as a result of the making of such distribution (herein referred to as a “Special Distribution”), determined in the manner hereafter set out in Section 4.5(h). In this Section 4.5(g) the term “dividends paid in the ordinary course” shall include the value of any securities or other property or assets distributed in lieu of cash dividends paid in the ordinary course at the option of shareholders.
(h) In circumstances described in Section 4.5(g), the Conversion Price will be adjusted effective immediately after such record date so that it shall equal the to a price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(1) the numerator of which is:
(A) the numerator shall be product of the total number of Common Shares outstanding on such record date and the Current Market Price of the Shares on such record date; less
(B) the aggregate fair market value (as determined by action by the directors of the Company, acting reasonably) to the holders of the Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and
(2) the denominator of which is the number of Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price of the Shares on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common . Any Shares owned by or held for the account of the Corporation Company or any subsidiary shall (as defined in the Securities Act (British Columbia)) of the Company will be deemed not to be outstanding for the purpose of any such computation;.
(iii) such adjustment shall be made successively whenever such a record date is fixed;[Intentionally Omitted]
(iiij) In the case of any reclassification of, or other change in, the outstanding Shares (other than a change referred to the extent that such distribution is not so madein Section 4.5(a), Section 4.5(b), or Section 4.5(g) or hereof), the Conversion Price shall be readjusted to the Conversion Price which would then be adjusted in effect such manner, if any, and at such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributedtime, as the case Board of Directors of the Company determines to be appropriate on a basis consistent with the intent of this Section 4.5(b); provided that if at any time a dispute arises with respect to adjustments provided for in this Section 4.5(j), such dispute will be conclusively determined by the auditors of the Borrowers or if they are unable or unwilling to act, by such other firm of independent chartered accountants as may be;be selected by action by the directors of the Company, acting reasonably, and any such determination will be binding on the Borrowers and the Purchaser.
(dk) if The Borrowers will provide such auditors or accountants with access to all necessary records of the Borrowers. If and whenever at any time during after the Adjustment Period, date hereof there is a reclassification or redesignation of the Common Shares outstanding at any time or a capital reorganization change of the Corporation Shares into other shares or into other securities (other than as described set out in Section 7.1(a4.5(a), (b), (g) or (i)), or a consolidation, amalgamation, arrangement amalgamation or merger of the Corporation Company with or into any other body corporate, trust, partnership corporation or other entityentity (other than a consolidation, amalgamation or merger which does not result in any reclassification or redesignation of the outstanding Shares or a sale or conveyance change of the property Shares into other shares and other than as set forth in 4.5(i) or a transfer of the undertaking or assets of the Corporation Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership another corporation or other entityentity (any of such events being called a “Capital Reorganization”), the Holder shallPurchaser, upon the exercise exercising of the Optional Conversion Right, after the effective date of such Capital Reorganization, will be entitled to receive and shall accept, in lieu of the number of shares then sought Shares to be acquired by itwhich the Purchaser was theretofore entitled upon such exercise, the aggregate number of Common Shares or shares, other securities or property of other property, if any, which the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder Purchaser would have been entitled to receive on as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, Capital Reorganization if, on the record date or the effective date thereof, as the case may be, the Holder Purchaser had been the registered holder of the number of Common Shares sought to be acquired by it and to which it such Purchaser was theretofore entitled upon exercise of the Optional Conversion Right. If determined appropriate by action of the directors of the Company, appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Section 4.5(b) with respect to acquire the rights and interests thereafter of the Purchaser to the end that the provisions set forth in this Section 4.5(b) will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the exercise of the Optional Conversion Right and a contemporaneous and equal Right. Any such adjustment shall must be made by and set forth in an amendment to this Note approved by action by the Conversion Price;directors of the Company, acting reasonably, and will for all purposes be conclusively deemed to be an appropriate adjustment.
(el) in In any case in which this Section 7.1(b4.5(b) or 7.1(c) shall require that an adjustment be made shall become effective immediately after a record date for an event referred to herein, the Company may defer, until the occurrence of such event, issuing to the Conversion PricePurchaser before the occurrence of such event, no the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Borrowers shall deliver to the Purchaser an appropriate instrument evidencing the Purchaser’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment shall be and the right to receive any distributions made ifon such additional Shares declared in favour of holders of record of Shares on and after the Issue Date or such later date as the Purchaser would, subject to but for the prior approval provisions of applicable stock exchanges the Holder receives the rights, options or warrants referred to in this Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c4.5(l), as have become the case may be, in such kind and number as it would have received if it had been a holder of Common such additional Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 4.5(b).
(fm) the The adjustments provided for in this Section 7.1 4.5(b) are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events event resulting in any adjustment under the provisions of this Section 7.1.
Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent (g1%) if, in the opinion of the DirectorsConversion Price then in effect; provided, the provisions however, that any adjustments which by reason of this Section 7.1 4.5(m) are not strictly applicablerequired to be made shall be carried forward and taken into account in any subsequent adjustment. No Conversion Price adjustment will be made to the extent that the Company makes an equivalent distribution to holders of Notes in respect of such Notes. No adjustment to the Conversion Price will be made for distributions or dividends on Shares issuable upon conversion of Notes that have been surrendered for conversion, or if strictly provided that holders converting their Notes shall be entitled to receive, in addition to the applicable would not fairly protect the rights number of the Holder Shares, accrued and unpaid interest payable in accordance with the intent cash from, and purposes hereofincluding, the Directors shall make any adjustment in such provisions for most recent interest payment date to, but excluding, the benefit date of the Holder as the Directors deem appropriateconversion.
Appears in 3 contracts
Sources: Securities Purchase Agreement and Notes (MedMen Enterprises, Inc.), Securities Purchase Agreement (MedMen Enterprises, Inc.), Securities Purchase Agreement (MedMen Enterprises, Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodCompany shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, the Corporation shall:
(i2) subdividemake a distribution in shares of Common Stock to holders of Common Stock, redivide or change (3) subdivide its outstanding shares of Common Shares Stock into a greater number of such shares; or
shares of Common Stock or (ii4) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect on immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of a dividend or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination a subdivision or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;combination.
(b) if and whenever at any time during In case the Adjustment Period, Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the Corporation shall fix a record date for the issuance determination of rights, options holders of Common Stock entitled to receive such rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period and expiring not more than 45 days after such record date, ) to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it same shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less plus the fair market value number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (as determined by or the Directors, subject to Section 7.4 aggregate conversion price of the convertible securities so offered) would purchase at such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such Twenty Day Weighted Average Trading distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided that:
in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) Common Shares owned by if such conversion occurs on or held prior to the date for the account distribution to the holders of Rights of separate certificates evidencing such Rights (the Corporation or any subsidiary shall be deemed not "Distribution Date"), the same number of Rights to be outstanding for which a holder of a number of shares of Common Stock equal to the purpose number of any Conversion Shares is entitled at the time of such computation;
conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such adjustment shall be made successively whenever such conversion occurs after the Distribution Date, the same number of Rights to which a record date is fixed;holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(iiid) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the extent Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution is not so (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be readjusted reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which would then the numerator shall be the Current Market Price per share (determined as provided in effect if paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such record date had not been fixed or cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the Conversion aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price which would then per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in effect based upon respect of such shares tender offer or rightsother negotiated transaction and the amount of such Excess Payment, options together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or warrants retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or evidences expiration of indebtedness or assets actually distributedsuch current tender offer, as the case may be;
be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) if and whenever at any time during of this Section or this paragraph (e) has been made, exceeds 15% of the Adjustment Period, there is a reclassification product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Shares or a capital reorganization of Stock on the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of Purchase Date multiplied by the number of shares then sought to be acquired by itof Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may Conversion Price shall be made, as the case may be, reduced so that the Holder would have been entitled to receive on same shall equal the price determined by multiplying such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable record or to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective date, as immediately prior to the case may be;opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the adjustments provided average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in this Section 7.1 are cumulative, and shall, in the case of adjustments determining such Daily Market Prices prior to the Conversion Price be computed time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions time of this Section 7.1determination.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 3 contracts
Sources: Indenture (Talk America), Indenture (Talk America), Indenture (Talk America)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjustments, calculated by the Company, from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodCompany shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Corporation shallConversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction:
(i) subdividethe numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such determination, redivide and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or change its other distribution. Such reduction shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 12.4(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Shares Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such shares; or
(ii) reducesubdivision becomes effective shall be proportionately reduced, combine or consolidate its and conversely, in case outstanding shares of Common Shares Stock shall be combined into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective date of shall be proportionately increased, such subdivision, redivision, change, reduction, combination reduction or consolidationincrease, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall in the case of the events issue rights or warrants (other than any rights or warrants referred to in (iSection 12.4(d)) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding shares of Common Shares Stock entitling them, them for a period expiring of not more than 45 60 days after such record date, to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price (as defined in Section 12.4(g)) on the Record Date fixed for the determination of stockholders entitled to receive such record daterights or warrants, the Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date Record Date by a fraction, :
(i) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and
(ii) the denominator of which shall be the number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price close of business on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be Record Date plus the total number of additional shares of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
Stock so offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such a record date is fixed;
(iii) to rights or warrants. To the extent that any shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rightsrights or warrants, options upon the expiration or termination of such rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if had the adjustments made upon the issuance of such record date had rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not been fixed or so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect based upon if such date fixed for the number determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon Stock at less than such Current Market Price, and in determining the exercise aggregate offering price of such rightsshares of Common Stock, options there shall be taken into account any consideration received for such rights or warrants, as the case may be;value of such consideration if other than cash, to be determined by the Board of Directors.
(cd) if and whenever at any time during In case the Adjustment Period the Corporation shall fix a record date for the making of a distribution Company shall, by dividend or otherwise, distribute to all or substantially all the holders of its outstanding Common Shares of (i) Stock shares of any class, whether class of capital stock of the Corporation Company (other than any dividends or distributions to which Section 12.4(a) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (1) any other corporation (including stock dividends), (ii) rights, options rights or warrants (excluding those referred to in Section 7.1(b12.4(c)); , (iii2) evidences of its indebtedness any stock, securities or (iv) other property or assets (including cash) of distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies and (3) dividends and distributions paid exclusively in cash (the Corporationsecurities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 12.4(d) called the “securities”), then, in each such case, subject to the second succeeding paragraph of this Section 12.4(d), the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date (as defined in Section 12.4(g)) with respect to such distribution by a fraction:
(i) the numerator of which shall be the Current Market Price (determined as provided in Section 12.4(g)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) on such date of the portion of the securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and
(ii) the denominator of which shall be such Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the Record Date. However, in the event that the then fair market value (as so determined) of the portion of the securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of securities such Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.4(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 12.4(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 12.4(d) (and no adjustment to the Conversion Price under this Section 12.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 12.4(d):
(i) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrant (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and
(ii) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12.4(d) and Sections 12.4(a), 12.4(b) and 12.4(c), any dividend or distribution to which this Section 12.4(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12.4(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12.4(c) applies (or any combination thereof), shall be deemed instead to be:
(i) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 12.4(a), 12.4(b) and 12.4(c) apply, respectively (and any Conversion Price reduction required by this Section 12.4(d) with respect to such dividend or distribution shall then be made), immediately followed by
(ii) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution,” “Record Date fixed for such determinations” and “Record Date” within the meaning of Section 12.4(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 12.4(b), and (z) as “the date fixed for the determination of stockholders entitled to receive such rights or warrants,” “the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section 12.4(c), and
(B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of Section 12.4(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies or as part of a distribution referred to in Section 12.4(d) hereof), in an aggregate amount that, combined together with:
(i) the aggregate amount of any other such distributions to all holders of Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12.4(e) has been made, and
(ii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of such distribution, and in respect of which no adjustment pursuant to Section 12.4(f) hereof has been made, exceeds (A) 1% in the case of any such dividend or other distribution made prior to June 30, 2006 or (B) 10% in the case of any such dividend or distribution made on or after June 30, 2006, of the product of the Current Market Price (determined as provided in Section 12.4(g)) on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then and in each such case, immediately after the close of business on such record date date, the Conversion Price shall be reduced so that it the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such record date Record Date by a fraction, :
(i) the numerator of which the numerator shall be equal to the total Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 1% or 10%, as the case may be, and (y) the number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Record Date, and
(ii) the denominator of which shall be equal to the Current Market Price on such record date. However, less in the event that the then fair market value (as determined by so determined) of the Directors, subject portion of the securities so distributed applicable to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number one share of Common Shares outstanding Stock is equal to or greater than the Current Market Price on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account Record Date, in lieu of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment foregoing adjustment, adequate provision shall be made successively whenever so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of cash such a record date is fixed;
Holder would have received had such Holder converted such Security (iiior portion thereof) immediately prior to such Record Date. In the extent event that such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;declared.
(f) In case a tender offer made by the adjustments provided Company or any of its subsidiaries for in this Section 7.1 are cumulative, all or any portion of the Common Stock shall expire and shall, such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion terms of the Directors, the provisions tender offer) of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights Purchased Shares (as defined below)) of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.an aggregate consideration hav
Appears in 2 contracts
Sources: Indenture (Nektar Therapeutics), Indenture (Nektar Therapeutics)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if 6.5.1 If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) 6.5.1 shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under Sections 6.5.2 and 6.5.3 of this Section 6.5. Upon any adjustment to the Conversion Price as set out in this Section 6.5.1, the number of Common Shares to be issued upon conversion shall, in the case of any of the events referred to in (i) or (iii) above, be increased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision, dividend or distribution, or shall, in the case of any of the events referred to in (ii) above, be decreased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation.
(b) if 6.5.2 If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares (other than for the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares) entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record datedate (other than pursuant to the distribution reinvestment plan of the Corporation), the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if 6.5.3 If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether class other than Common Shares and other than shares distributed to holders of Common Shares who have elected to receive dividends or distributions in the Corporation form of such shares in lieu of dividends or any other corporation (including stock dividends)distributions paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible into Common Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 with the approval of the Debenture Agent, which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;. In clause (iv) of this Section 6.5.3 the term “dividends or distributions paid in the ordinary course” shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of shareholders.
(d) if 6.5.4 If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) 6.5.1 or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership person or other entity, ; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership person or other entity resulting from such mergerreclassification, capital reorganization, consolidation, amalgamation, arrangement or consolidationmerger, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5.4, the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up or other similar transaction, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any shares or other securities or property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Debenture Agent pursuant to the provisions of this Section 6.5.4 shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing person or other entity and the Debenture Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5.4 and which shall apply to successive reclassifications, capital reorganizations, consolidations, amalgamations, mergers, sales or conveyances and to any successive liquidation, dissolution or winding up or other similar transaction.
6.5.5 In any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 6.5.5, have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 6.4.2.
(f) the 6.5.6 The adjustments provided for in this Section 7.1 6.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.16.5.6 are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
6.5.7 For the purpose of calculating the number of Common Shares outstanding, Common Shares owned by or for the benefit of the Corporation shall not be counted.
6.5.8 In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question shall be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Corporation and acceptable to the Debenture Agent (g) ifwho may be the auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Debenture Agent, and the Debentureholders.
6.5.9 In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 6.5, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall make any adjustment be adjusted in such provisions for the benefit manner and at such time, by action of the Holder Directors, subject to the prior written consent of the TSX-V (or, if the Debentures of any series are not listed thereon, on such other exchange on which the Debentures of any series are then listed), as the Directors deem appropriatein their sole discretion may determine to be equitable in the circumstances. Failure of the Directors to make such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.
6.5.10 Subject to the prior written consent of the TSX-V or such other exchange on which the Debentures of any series are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in Section 6.5.1, 6.5.2 or 6.5.3 other than the events described in Section 6.5.1(i) or (ii) if the holders of Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event.
6.5.11 Except as stated above in this Section 6.5, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the Current Market Price for such Common Shares on the date of issuance or the then applicable Conversion Price.
Appears in 2 contracts
Sources: Debenture Indenture (Amaya Gaming Group Inc.), Debenture Indenture (Amaya Gaming Group Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment Period, the Corporation shall:
Company shall (i) subdividepay a dividend in shares of its capital stock (other than an issuance of shares of capital stock to holders of Common Stock who have elected to receive a dividend in shares in lieu of cash), redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) subdivide its outstanding shares of Common Stock, (iii) reduce, consolidate or combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; , or (iv) issue by reclassification of its shares of Common Stock any shares of the Conversion Price Company, the conversion price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price thereto shall be adjusted immediately after such record date so to that it shall equal the amount determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such date before giving effect to such division, subdivision, reduction, combination or consolidation or stock dividend and of which the denominator shall be the number of shares of Common Stock after giving effect thereto. Such adjustment shall be made successively whenever any such effective date or record date multiplied by shall occur. An adjustment made pursuant to this subsection (a) shall become effective retroactively, immediately after the Twenty Day Weighted Average Trading Price on such record datedate in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision, reduction, consolidation, combination or reclassification.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (the "Offering Price") less than the fair market value per share of Common Stock (as defined in subsection (d) below) at the record date mentioned below, the price per share at which the B Notes may thereafter be converted into Common Stock shall be determined by dividing the Directors, subject to Section 7.4) price per share for which the B Notes were theretofore convertible into Common Stock by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, options rights or warrantswarrants plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of shares which the aggregate Offering Price of the total number of Common Shares outstanding on shares so offered would purchase at such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such fair market value. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options rights or warrants are not exercised prior to issued, and shall become effective retroactively, immediately after the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or for the determination of shareholders entitled to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of receive such rights, options rights or warrants, as the case may be;.
(c) if and whenever at any time during In case the Adjustment Period the Corporation Company shall fix a record date for the making of a distribution distribute to all or substantially all the holders of its outstanding Common Shares Stock evidences of (i) its indebtedness, shares of any class, whether class of the Corporation Company's stock other than Common Stock or any other corporation assets (including stock excluding cash dividends), (ii) rights, options or rights or warrants to subscribe (excluding those referred to in Section 7.1(bsubsection (b) above)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, then in each such case, case the Conversion Price price per share at which the B Notes may thereafter be converted into Common Stock shall be adjusted immediately after such record date so that it shall equal determined by dividing the price determined by multiplying per share for which the Conversion Price in effect on such record date B Notes were theretofore convertible into Common Stock by a fraction, of which the numerator shall be the total number fair market value per share of Common Shares outstanding Stock (as defined in subsection (d) below) on the date of such record date multiplied by distribution and of which the Twenty Day Weighted Average Trading Price on denominator shall be such record datefair market value per share of the Common Stock, less the then fair market value (as determined by the Directorsboard of directors of the Company, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedwhose determination shall be conclusive, and of described in a statement, which will have the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account applicable resolutions of the Corporation or any subsidiary shall be deemed not to be outstanding for board of directors attached thereto, filed with the purpose Company) of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, portion of the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants assets or evidences of indebtedness or assets actually distributed, as shares so distributed or of such subscription rights or warrants applicable to one share of the case may be;Common Stock. Such adjustment shall be made whenever any such distribution is made and shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) if and whenever For the purpose of any computation under subsections 8.3(b) or (c), the fair market value per share of Common Stock at any time during date shall be (i) the Adjustment Period, there is a reclassification average of the mean of the closing bid and asked prices of the Common Shares or a capital reorganization of Stock for any 10 consecutive trading days commencing not more than 30 trading days before the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be maderelevant date, as reported in the case may beWall Street Journal (or, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereofif not so reported, as otherwise reported by the case may beNational Association of Securities Dealers, Inc. (the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b"NASD") or the Nasdaq Stock Market ("NASDAQ")), or, (ii) in the event the Common Stock is listed on a stock exchange or on the NASDAQ National Market System (or other national market system), the fair market value per share rights, options, warrants, evidences shall be the average of indebtedness the closing prices on the exchange or assets referred to in Section 7.1(con the NASDAQ Market System (or other national market system), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on for any 10 consecutive trading days commencing not more than 30 trading days before the applicable record date or effective relevant date, as reported in the case may beWall Street Journal (or, if not so reported, as otherwise reported by virtue the stock exchange, NASDAQ, other national market system).
(e) If the Common Stock issuable upon the conversion of the Principal Sum having then B Notes shall be changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares or stock dividend provided for above, or a reorganization, merger, consolidation or sale of assets provided for in this section 8.3), then, and in each such event, each Holder of B Notes shall have the right thereafter to convert such B Notes into the kind and amount of shares of Common Stock and other securities and property receivable upon such reorganization, reclassification, or other change by the Holders of the number of shares of Common Stock into which such B Notes might have been converted into Common Shares at the Conversion Price in effect on the applicable record or effective dateconverted, as reasonably determined by the case may be;Company's board of directors, immediately prior to such reorganization, reclassification, or change, all subject to further adjustment as provided herein.
(f) If at any time or from time to time there shall be a capital reorganization of the Common Stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this section 8.3) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company's properties and assets to any other person, then, as a part of such reorganization, merger, consolidation or sale, provision shall be made as reasonably determined by the Company's board of directors so that the Holders of the B Notes shall thereafter be entitled to receive upon conversion of such B Notes, the number of shares of stock or other securities or property of the Company or of the successor corporation resulting from such merger or consolidation or sale, to which a Holder of Common Stock deliverable upon conversion would have been entitled on such capital reorganization, merger, consolidation or sale.
(g) The adjustments provided for in this Section 7.1 section 8.3 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive divisions, subdivisions, redivisions, reductions, combinations, consolidations, distributionsissues, issues distributions or other events contemplated herein resulting in any adjustment under the provisions of this Section 7.1section, provided that, notwithstanding any other provision of this section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided, however, that any adjustments which by reason of this subsection (g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gh) ifUpon each adjustment of the Conversion Price, the Company shall give prompt written notice thereof addressed to the registered Holders of B Notes at the address of such Holders as shown on the records of the Company, which notice shall state the Conversion Price resulting from such adjustment and the increase or decrease, if any, in the opinion number of shares issuable upon the conversion of such Holder's B Notes, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
(i) In the event of any question arising with respect to the adjustments provided for in this section 8.3, such question shall be conclusively determined by a firm of independent certified public accountants appointed by the Company (who may be the auditors of the Directors, Company) and acceptable to the provisions Holders of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights at least 50% of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit principal amount of the Holder as B Notes outstanding; such accountants shall have access to all necessary records of the Directors deem appropriateCompany and such determination shall be binding upon the Company, and the Holders.
Appears in 2 contracts
Sources: Subscription and Purchase Agreement (Renaissance Entertainment Corp), Subscription and Purchase Agreement (Renaissance Entertainment Corp)
Adjustment of Conversion Price. The Subject to the requirements of the Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during the Adjustment Period, the Corporation Company shall:
(i) fix a record date for the issue of, or issue, Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend or otherwise;
(ii) fix a record date for the distribution to, or make a distribution to, the holders of all or substantially all of the outstanding Common Shares payable in Common Shares or securities exchangeable or exercisable for or convertible into Common Shares;
(iii) subdivide, redivide re-divide or change its then outstanding Common Shares into a greater number of such sharesCommon Shares; or
(iiiv) reduce, combine or consolidate its then outstanding Common Shares into a smaller lesser number of Common Shares, (any of such shares; events in Sections 6.5(a)(i), 6.5(a)(ii), 6.5(a)(iii) and 6.5(a)(iv) above being herein called a "Common Share Reorganization"), then the Conversion Price shall be adjusted on the earlier of the record date on which holders of Common Shares are determined for the purposes of the Common Share Reorganization and the effective date of the Common Share Reorganization to the amount determined by multiplying the Conversion Price in effect on the immediately prior to such record date or effective date of such subdivision, redivision, change, reduction, combination or consolidationdate, as the case may be, shall in the case of the events referred to in by a fraction:
(i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction numerator of which the numerator shall be the total number of Common Shares outstanding immediately prior on such record date or effective date, as the case may be, before giving effect to such date and Common Share Reorganization; and
(ii) the denominator of which shall be the total number of Common Shares which will be outstanding immediately after giving effect to such Common Share Reorganization (including in the case of a distribution of securities exchangeable or exercisable for or convertible into Common Shares, the number of Common Shares that would have been outstanding had such securities been exchanged or exercised for or converted into Common Shares on such date). Such To the extent that any adjustment in the Conversion Price occurs pursuant to this Section 6.5(a) as a result of the fixing by the Company of a record date for the distribution of securities exchangeable or exercisable for or convertible into Common Shares, the Conversion Price shall be made successively whenever readjusted immediately after the expiry of any event referred relevant exchange, exercise or conversion right to the Conversion Price which would then be in this Section 7.1(a) effect based upon the number of Common Shares actually issued and remaining issuable after such expiry and shall occur;be further readjusted in such manner upon the expiry of any further such right.
(b) if and whenever If at any time during the Adjustment Period, the Corporation Company shall fix a record date for the issuance issue or distribution to the holders of all or substantially all of the outstanding Common Shares of rights, options or warrants pursuant to all or substantially all the which such holders of its outstanding Common Shares entitling themare entitled, for during a period expiring not more than 45 days after the record date for such record dateissue (such period being the "Rights Period"), to subscribe for or purchase Common Shares (or securities exchangeable or exercisable for or convertible or exchangeable into Common Shares) Shares at a price per share to the holder (or having a in the case of securities exchangeable or exercisable for or convertible into Common Shares, at an exchange, exercise or conversion or exchange price per share) at the date of issue of such securities of less than 95% of the Twenty Day Weighted Average Trading Current Market Price of the Common Shares on such record datedate (any of such events being called a "Rights Offering"), the Conversion Price shall be adjusted effective immediately after such the record date so that it shall equal for such Rights Offering to the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which the numerator shall be the total aggregate of
(1) the number of Common Shares outstanding on the record date for the Rights Offering, and
(2) the quotient determined by dividing
(A) either (a) the product of the number of Common Shares offered during the Rights Period pursuant to the Rights Offering and the price at which such Common Shares are offered, or, (b) the product of the exchange, exercise or conversion price of the securities so offered and the number of Common Shares for or into which the securities offered pursuant to the Rights Offering may be exchanged, exercised or converted, as the case may be, by
(B) the Current Market Price of the Common Shares as of the record date for the Rights Offering; and
(ii) the denominator of which shall be the aggregate of the number of Common Shares outstanding on such record date multiplied and the number of Common Shares offered pursuant to the Rights Offering (including in the case of the issue or distribution of securities exchangeable or exercisable for or convertible into Common Shares the number of Common Shares for or into which such securities may be exchanged, exercised or converted). If by the Twenty Day Weighted Average Trading Price on such record date, less terms of the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options options, or warrantswarrants referred to in this Section 6.5(b), and there is more than one purchase, exchange, exercise or conversion price per Common Share, the aggregate price of which the denominator shall be the total number of additional Common Shares outstanding offered for subscription or purchase, or the aggregate exchange, exercise or conversion price of the exchangeable, exercisable or convertible securities so offered, shall be calculated for purposes of the adjustment on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any the basis of the lowest purchase, exchange, exercise or conversion price per Common Share, as the case may be. Any Common Shares owned by or held for the account of the corporation or any subsidiary Company shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to calculation. To the extent that any such adjustment in the Conversion Price occurs pursuant to this Section 6.5(b) as a result of the fixing by the Company of a record date for the issue or distribution of rights, options or warrants are not exercised prior referred to the expiration thereofin this Section 6.5(b), the Conversion Price shall be readjusted immediately after the expiry of any relevant exchange, exercise or conversion right to the Conversion Price which would then be in effect based upon the number of Common Shares actually issued and remaining issuable after such expiry and shall be further readjusted in such manner upon the expiry of any further such right. To the extent that such Rights Offering is not ultimately so made, the Conversion Price shall then be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed fixed.
(c) If at any time during the Adjustment Period the Company shall fix a record date for the issue or distribution to the holders of all or substantially all of the outstanding Common Shares of:
(i) shares of the Company of any class other than Common Shares;
(ii) rights, options or warrants to acquire Common Shares or securities exchangeable or exercisable for or convertible into Common Shares (other than rights, options or warrants pursuant to which holders of Common Shares are entitled, during a period expiring not more than 45 days after the record date for such issue, to subscribe for or purchase Common Shares or securities exchangeable or exercisable for or convertible into Common Shares at a price per share (or in the case of securities exchangeable or exercisable for or convertible into Common Shares at an exchange, exercise or conversion price per share) on the record date for the issue of such securities to the holder of at least 95% of the Current Market Price of the Common Shares on such record date);
(iii) evidences of indebtedness of the Company; or
(iv) any property or other assets of the Company; and if such issue or distribution does not constitute a Common Share Reorganization or a Rights Offering (any of such non-excluded events being herein called a "Special Distribution"), the Conversion Price shall be adjusted effective immediately after the record date for the Special Distribution to the amount determined by multiplying the Conversion Price by a fraction:
(1) the numerator of which shall be the difference between
(A) the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date, and
(B) the fair value, as determined by the directors of the Company and subject to approval by the applicable Stock Exchanges, to the holders of Common Shares of the shares, rights, options, warrants, evidences of indebtedness or property or assets to be issued or distributed in the Special Distribution, and
(2) the denominator of which shall be the product obtained by multiplying the number of Common Shares outstanding on such record date by the Current Market Price of the Common Shares on such record date. Any Common Shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purpose of such calculation. To the extent that any adjustment in the Conversion Price occurs pursuant to this Section 6.5(c) as a result of the fixing by the Company of a record date for the issue or distribution of rights, options or warrants to acquire Common Shares or securities exchangeable or exercisable for or convertible into Common Shares referred to in this Section 6.5(c), the Conversion Price shall be readjusted immediately after the expiry of any relevant exchange, exercise or conversion right to the amount which would then be in effect based upon the number of Common Shares issued and remaining issuable after such expiry and shall be further readjusted in such manner upon the expiry of any further such right.
(d) If at any time during the Adjustment Period there shall occur:
(i) a reclassification or redesignation of the Common Shares, a change of the Common Shares into other shares or securities convertible or exchangeable into any other capital reorganization involving the Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may beShares other than a Common Share Reorganization;
(cii) if a consolidation, amalgamation, arrangement or merger of the Company with or into another body corporate which results in a reclassification or redesignation of the Common Shares or a change of the Common Shares into other shares or securities; or
(iii) the transfer of the undertaking or assets of the Company as an entirety or substantially as an entirety to another corporation or entity; (any of such events being called a "Capital Reorganization"), after the effective date of the Capital Reorganization the Debentureholder shall be entitled to receive, and whenever shall accept, for the same aggregate consideration, upon the conversion of the Debentures, in lieu of the number of Conversion Shares to which the Debentureholder was theretofore entitled upon the conversion of the Debentures, the kind and aggregate number of shares and other securities or property resulting from the Capital Reorganization which the Debentureholder would have been entitled to receive as a result of the Capital Reorganization if, on the effective date thereof, the Debentureholder had been the registered holder of the number of Conversion Shares which the Debentureholders was theretofore entitled to purchase or receive upon the conversion of the Debentures. If necessary, as a result of any such Capital Reorganization, appropriate adjustments shall be made in the application of the provisions of this Indenture with respect to the rights and interests thereafter of the Debentureholder to the end that the provisions shall thereafter correspondingly be made applicable as nearly as may reasonably be possible in relation to any shares or other securities or property thereafter deliverable upon the conversion of the Debentures.
(e) If at any time during the Adjustment Period the Corporation Company shall fix a record date for the making payment of a cash dividend or distribution to the holders of all or substantially all of the holders of its outstanding Common Shares (other than dividends paid in the ordinary course, once initiated under a dividend policy approved by the board of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividendsdirectors), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by difference between
(1) the Twenty Day Weighted Average Trading Current Market Price on such record date, less and
(2) the fair market value (as determined by the Directors, subject amount in cash per Common Share distributed to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number holders of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;Shares, and
(ii) the denominator of which shall be the Current Market Price on such record date. Such adjustment shall be subject to the approval of the TSX and shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such cash dividend or distribution is not so madepaid, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1fixed.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 2 contracts
Sources: Convertible Debenture Indenture (I-80 Gold Corp.), Convertible Debenture Indenture (I-80 Gold Corp.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Maturity Date the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 6.3(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.3.
(b) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Maturity Date the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(asubsection 6.2(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to subsection 6.2(k). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this subsection 6.2(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this subsection 6.3(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this subsection 6.3(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this subsection 6.3(d) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this subsection 6.3(d) applies shall be given in accordance with Section 6.7. The Corporation shall not become a party to any Merger Event unless its terms are consistent with this subsection 6.3(d).
(e) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided below) that exceeds the Current Market Price on the applicable record last date or effective date(the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), as the case may be, Conversion Price shall be adjusted so that the same shall equal the rate determined by virtue of the Principal Sum having then been converted into Common Shares at multiplying the Conversion Price in effect immediately preceding the close of business on the applicable record or effective dateExpiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the case may be;
“Purchased Common Shares”) and (fB) the adjustments provided for in this Section 7.1 are cumulative, product of the number of Common Shares outstanding (less any Purchased Common Shares and shall, excluding any Common Shares held in the case treasury of adjustments the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be computed adjusted to be the nearest whole cent and shall apply to successive subdivisionsConversion Price which would have been in effect based upon the number of Common Shares actually purchased, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this Section 7.1.
(gsubsection 6.2( e ) if, to any issuer bid would result in a decrease in the opinion of the DirectorsConversion Price, the provisions of no adjustment shall be made for such issuer bid under this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriatesubsection 6.2(e).
Appears in 2 contracts
Sources: Indenture (Modern Mining Technology Corp.), Indenture (Modern Mining Technology Corp.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall will be subject to adjustment from time to time as follows:set forth below.
(a) if and whenever If at any time during prior to the Adjustment Period, Maturity Date the Corporation shall:Corporation
(i) subdivide, redivide subdivides or change its redivides the outstanding Common Shares into a greater number of such shares; orCommon Shares,
(ii) reducereduces, combine combines or consolidate its consolidates the outstanding Common Shares into a smaller number of such sharesCommon Shares, or
(iii) issues Common Shares or securities exchangeable or convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution or otherwise (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividend or distributions in the form of Common Shares in lieu of cash dividends or distributions paid in the ordinary course on the Common Shares); then the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution or otherwise, as the case may be, shall will, in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changeredivision, or shallissue by way of dividend or distribution or otherwise; or will, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall will be made successively whenever any event referred to in this Section 7.1(a6.4(a) shall occur;occurs. Any such issue of Common Shares by way of a dividend or distribution will be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 6.4.
(b) if and whenever If at any time during prior to the Adjustment Period, Maturity Date the Corporation shall fix fixes a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share Common Share (or having a conversion or exchange price per shareCommon Share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, then the Conversion Price shall will be adjusted immediately after such record date so that it shall will equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall will be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall will be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation convertible securities so offered are convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable). Such adjustment shall will be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if and whenever If at any time during prior to the Adjustment Period Maturity Date the Corporation shall fix fixes a record date for the making of a dividend or distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares Common Shares or other securities of any class, whether of the Corporation or any class other corporation (including stock dividends)than Common Shares, (ii) rights, options or warrants (excluding those referred excluding, rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible into Common Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) any property or other assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall will be adjusted immediately after such record date so that it shall equal equals the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be is the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 acting reasonably, which determination will be conclusive) of such shares, Common Shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so or cash actually distributed, and of which the denominator shall will be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall will be made successively whenever such a record date is fixed;
(iii) to . To the extent that such dividend or distribution is not so made, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares Common Shares or other securities or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) if and whenever If at any time during prior to the Adjustment PeriodMaturity Date, there is a reclassification of the Common Shares or a capital reorganization of the Corporation (other than as described in Section 7.1(a6.4(a)) or a consolidation, amalgamationmerger, arrangement arrangement, acquisition or merger business combination of the Corporation with or into any other body corporate, trust, partnership Person or other entity, ; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, or similar transaction, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, merger, arrangement, acquisition, business combination, sale or conveyance, liquidation, termination, dissolution, winding-up, or similar transaction, upon the exercise of the Conversion Rightsuch right thereafter, will be entitled to receive and shall will accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such reclassification, capital reorganization, consolidation, merger, amalgamationarrangement, arrangement acquisition or consolidation, business combination or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, termination, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamationarrangement, arrangement or merger, acquisition, business combination, sale or conveyanceconveyance or liquidation, iftermination, dissolution or winding-up, or similar transaction, if on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, will, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, merger, arrangement, acquisition, business combination, sale or conveyance or liquidation, termination, dissolution or winding-up, or similar transaction, enter into an indenture which provides, to the extent reasonably possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture will thereafter correspondingly be made applicable, as it would have received if it had been nearly as reasonably possible, with respect to any Common Shares or other securities or property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this Section 6.4(d) will be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Debenture Trustee will provide for adjustments which will be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.4(d) and which will apply to successive reclassifications, capital reorganizations, consolidations, mergers, arrangements, acquisitions, business combinations, sales or conveyances and to any successive liquidation, termination, dissolution or winding-up, or similar transaction.
(e) In any case in which this Section 6.4 requires that an adjustment will become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation will deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends paid or distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Business Day immediately after the Date of Conversion or such later date as such holder would, but for the provisions of this Section 6.4(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 6.3(b).
(f) the The adjustments provided for in this Section 7.1 6.4 are cumulative, cumulative and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall will apply to successive subdivisions, redivisions, reductions, combinations, consolidations, dividends, distributions, issues or other events resulting in any adjustment under the provisions of this Section; provided however that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price will be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided, further, that any adjustments which by reason of this Section 7.16.4(f) are not required to be made will be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Common Shares outstanding, Common Shares owned by or for the benefit of the Corporation will not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.4, such question will be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Corporation (who may be the Auditor of the Corporation); such accountants will have access to all necessary records of the Corporation and such determination will be binding upon the Corporation, the Debenture Trustee, and the Debentureholders, absent manifest error.
(i) In case the Corporation takes any action affecting the Common Shares other than action described in this Section 6.4, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders (including their conversion rights), the Directors shall make any adjustment Conversion Price and the Common Shares issuable upon conversion of the Debentures will be adjusted in such provisions for the benefit manner and at such time, by action of the Holder Directors, subject to the prior written consent of the TSXV or such other exchange on which the Debentures and the Common Shares are then listed, as the Directors deem appropriatein their discretion may determine to be equitable in the circumstances. Failure of the Directors to make such an adjustment will be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.
(j) Subject to the prior written consent of the TSXV or such other exchange on which the Debentures may be listed and posted for trading, no adjustment in the Conversion Price will be made in respect of any event described in Sections 6.4(a), 6.4(b) or 6.4(c) other than the events described in 6.4(a)(i) or 6.4(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event.
(k) Except as stated above in this Section 6.4, no adjustment will be made in the Conversion Price of any Debenture as a result of the issuance of Common Shares at less than the Current Market Price for such Common Shares on the date of issuance or the then applicable Conversion Price.
Appears in 2 contracts
Sources: Trust Indenture (IntelGenx Technologies Corp.), Trust Indenture (IntelGenx Technologies Corp.)
Adjustment of Conversion Price. 5.1.1 The Conversion Price in effect at any date shall will be subject to adjustment from time to time in the events and in the manner provided as follows.
5.1.2 If and whenever at any time after the date hereof and prior to the Maturity Date, the Company:
(a) if and whenever at any time during the Adjustment Periodsubdivides, the Corporation shall:
(i) subdivide, redivide redivides or change changes its outstanding Common Shares into a greater number of such shares; orCommon Shares;
(iib) reducereduces, combine combines or consolidate consolidates its outstanding Common Shares into a smaller number of Common Shares;
(c) issues Common Shares or securities convertible into or exercisable or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares as a stock dividend or otherwise; or
(d) makes a distribution on its outstanding Common Shares to the holders of all or substantially all of the outstanding Common Shares payable in Common Shares or securities convertible into or exercisable or exchangeable for Common Shares; (any of such shares; events in subsections (a), (b), (c) and (d), and being called a “Common Share Reorganization”) then the Conversion Price then in effect will be adjusted effective on the effective date of such subdivisiona Common Share Reorganization, redivision, change, reduction, combination or consolidation, as so that the case may be, Conversion Price shall in equal the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case price determined by multiplying the Conversion Price in effect on immediately prior to such effective date by a fraction fraction, the numerator of which the numerator shall will be the total number of Common Shares outstanding immediately prior on such effective date before giving effect to such date Common Share Reorganization and the denominator shall of which will be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exercisable or exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exercisable or exchanged for or converted into Common Shares on such effective date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;).
(b) if 5.1.3 If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Maturity Date, the Corporation shall fix Company fixes a record date for the issuance issue of rights, options or warrants to the holders of all or substantially all of the holders of its outstanding Common Shares entitling them, under which such holders are entitled to subscribe for or purchase during a period expiring not more than 45 days after the record date for such record date, to subscribe issue (the “Rights Period”) Common Shares or securities exchangeable for or purchase convertible into Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share in United States Dollars to the holder (or having a conversion or at an exchange price or conversion price per shareshare in the case of securities exchangeable for or convertible into Common Shares) which is less than 95% of the Twenty Day Weighted Average Trading Current Market Price for the Common Shares on such record datedate (any of such events being called a “Rights Offering”), then the Conversion Price shall will be adjusted effective immediately after such record date the end of the Rights Period so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date immediately prior to the end of the Rights Period by a fraction, :
(a) the numerator of which will be the numerator shall be aggregate of:
(i) the total number of Common Shares outstanding on such as of the record date multiplied by for the Twenty Day Weighted Average Trading Price on such record dateRights Offering, less the fair market value and
(as ii) a number determined by dividing (A) either (x) the Directorsproduct of the number of Common Shares issued or subscribed for upon the exercise of the rights, subject to Section 7.4warrants or options under the Rights Offering and the price in United States Dollars at which such Common Shares are offered for such issue or subscription, or, as the case may be, (y) the product of the exchange price or conversion price of such rightssecurities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, options or warrantsby (B) the Current Market Price of the Common Shares as of the record date for the Rights Offering, and and
(b) the denominator of which the denominator shall will be the total number of Common Shares outstanding on such after giving effect to the Rights Offering, including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. Any Holder who has exercised the right to convert to Common Shares in accordance with ARTICLE 4 during the period beginning immediately after the record date for a Rights Offering and ending on the last day of the Rights Period for the Rights Offering will, in addition to the Common Shares to which that Holder would otherwise be entitled upon such conversion, be entitled to that number of additional Common Shares equal to the result obtained when (x) the difference, if any, between the Conversion Price in effect immediately prior to the end of the Rights Period for such Rights Offering and the Conversion Price as adjusted for such Rights Offering pursuant to this subsection is multiplied by such Twenty Day Weighted Average Trading Price provided that
(iy) any the number of Common Shares owned by or held for received upon the account conversion of the corporation or Debentures held by such Holder during such period, and the resulting product is divided by (z) the Conversion Price as adjusted for such Rights Offering pursuant to this subsection; provided that the provisions of section 4.3 will be applicable to any subsidiary shall fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this subsection. Such additional Common Shares will be deemed not to have been issued to the Holder immediately following the end of the Rights Period and a certificate for, or beneficial interest in, such additional Common Shares will be outstanding for delivered to such Holder within 15 Business Days following the purpose end of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the Rights Period. To the extent that any such rights, options or warrants are not so exercised prior to on or before the expiration expiry thereof, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon on the number of Common Shares (or the securities convertible into or exchangeable into for Common Shares) actually issued upon delivered on the exercise of such rights, options or warrants, as the case may be;.
(c) if 5.1.4 If and whenever at any time during after the Adjustment Period date hereof and prior to the Corporation shall fix Maturity Date, the Company fixes a record date for the making of a issue or the distribution to the Holders of all or substantially all of the holders of its outstanding Common Shares of (i) shares of any class, whether securities of the Corporation or any other corporation (Company, including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) acquire securities of the Company or any of its property or assets and including cash and evidences of its indebtedness indebtedness; or (ivii) assets any property or other assets, including cash and evidences of indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course or a cash dividend (including cash) as to which Section 5.1.6 shall apply), Common Share Reorganization, a Rights Offering (any of the Corporationsuch non-excluded events being called a “Special Distribution”), then, in each such case, then the Conversion Price shall will be adjusted effective immediately after the date of such record date issuance or distribution so that it shall equal the price determined by multiplying the Conversion Price in effect on such record issuance or distribution date by a fraction, :
(a) the numerator of which will be:
(i) the numerator shall be product of the total number of Common Shares outstanding on the date of such record issuance or distribution and the Current Market Price of the Common Shares on the date multiplied by of such issuance or distribution; less
(ii) the Twenty Day Weighted Average Trading Price on such record date, less the fair market value Fair Market Value (as determined by the Directors, which determination shall be subject to Section 7.4 the consent of a Recognized Stock Exchange), to the holders of Common Shares of such shares, rights, options, warrants, evidences of indebtedness securities or property or other assets so distributed, and issued or distributed in the Special Distribution; and
(b) the denominator of which the denominator shall will be the total product of the number of Common Shares outstanding on the date of such record date multiplied by such Twenty Day Weighted Average Trading issuance or distribution and the Current Market Price provided that:
(i) of the Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any on such computation;date.
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if 5.1.5 If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Maturity Date, there is a reclassification of the Common Shares at any time outstanding or a change of the Common Shares into other shares or into other securities or other capital reorganization of the Corporation (other than as described in Section 7.1(a) a Common Share Reorganization), or a consolidation, amalgamation, arrangement amalgamation or merger of of, or an arrangement involving, the Corporation Company with or into any other body corporate, trust, partnership corporation or other entityentity (other than a vertical short-form amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to Applicable Law), or a sale or conveyance transfer of the property and undertaking or assets of the Corporation Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership another corporation or other entityentity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events being called a “Capital Reorganization”), any Holder who exercises the Holder shall, upon right to convert Debentures into Common Shares after the exercise effective date of the Conversion Right, such Capital Reorganization will be entitled to receive receive, and shall accept, will accept for the same aggregate consideration in lieu of the number of shares then sought Common Shares to be acquired by itwhich such Holder was previously entitled upon such conversion, the aggregate number of Common Shares or shares, other securities or other property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, Capital Reorganization if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to which such Holder was previously entitled upon conversion; provided, however, that the consideration into which the Debentures will be convertible will be limited to the Common Shares or other prescribed securities (as defined by section 6208 of the regulations to the Income Tax Act (Canada)) of the Company as specified by the Board of Directors of the Company. The Company will take all steps necessary to ensure that, on a Capital Reorganization, the Holders will receive the aggregate number of shares, other securities or other property to which they are entitled as a result of the Capital Reorganization and that such shares or securities will be prescribed securities as defined in section 6208 of the regulations to the Income Tax Act (Canada), which includes shares or securities not redeemable by the Holder thereof within 5 years from the issue date of the Debentures. Appropriate adjustments will be made in the application of the provisions set forth in this ARTICLE 5 as a result of any such Capital Reorganization with respect to the rights and interests thereafter of Holders of Debentures to the end that the provisions set forth in this ARTICLE 5 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the Company and the Indenture Trustee will enter into an indenture supplemental hereto, or other appropriate document, approved by action of the Board of Directors, which will set forth an appropriate adjustment to give effect to this subsection, in which event such adjustment will for all purposes be conclusively deemed to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifappropriate adjustment, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue written consent of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective dateRecognized Stock Exchanges, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1if so required.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 2 contracts
Sources: Indenture (Golden Star Resources LTD), Indenture (Golden Star Resources LTD)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation Company shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or otherwise (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends in the form of Common Shares in lieu of cash dividends paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case or on the record date for such issue of Common Shares by way of a dividend, shall be adjusted immediately after such effective date or such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such effective date or record date, as applicable, by a fraction fraction, of which the numerator shall be the total number of Common Shares outstanding immediately prior to such effective date or record as applicable date, and of which the denominator shall be the total number of Common Shares outstanding immediately after resulting from such datesubdivision, redivision, reduction, combination or consolidation or issuance of Common Shares by way of a dividend. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.6(a) shall occur;. Any such issue of Common Shares by way of a dividend shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (d) of this Section 6.6.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation Company shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share unit (or having a conversion or exchange price per shareunit) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) Subject to the terms of this Indenture, if and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation Company shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether class other than Common Shares or other securities and other than securities distributed to holders of Common Shares who have elected to receive dividends in the Corporation or any other corporation (including stock dividends)form of such shares in lieu of dividends paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof as at a specified date to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible into Common Shares for a period of not more than 45 days after such date)); , (iii) evidences of its indebtedness indebtedness, or (iv) other assets (including cashexcluding dividends paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the Directorsdirectors of the Company, subject to Section 7.4 with the approval of the Trustee, which determination shall be conclusive) of such shares, other securities, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only such shares or shares, rights, options or warrants or options, warrants, evidences of indebtedness or assets actually distributeddistributed were included in such fraction, as the case may be;. In clause (iv) of this subsection (c) the term “dividends paid in the ordinary course” shall include the value of any securities or other property or assets distributed in lieu of cash dividends paid in the ordinary course at the option of shareholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation Company other than as described in Section 7.1(a6.6(a) or a consolidation, amalgamation, arrangement or arrangement, binding securities exchange, merger of the Corporation Company with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Company or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of substantially all of the property and assets of the Corporation Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Company) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCompany, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, securities exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation Company or of the body corporate, trust, partnership Person or other entity resulting from such reclassification, capital reorganization, merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, securities exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.6(d), the Company, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, securities exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Company and the Trustee pursuant to the provisions of this Section 6.6(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Company, any successor to the Company or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.6(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, securities exchanges, acquisitions, combinations, sales or conveyances.
(e) In the event the Company pays a dividend to all or substantially all the holders of Common Shares on the applicable record date consisting of capital stock, or effective datesimilar equity interests in, as the case may be, by virtue a Subsidiary or other business unit of the Principal Sum having then been converted into Common Shares at Company (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Company pays an equivalent dividend to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such dividend by a fraction, the denominator of which shall be the sum of (i) the product of (A) the VWAP for the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the Toronto Stock Exchange, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted multiplied by (B) the number of Common Shares issued and outstanding and (ii) the product of (A) the volume weighted average price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers’ Certificate delivered to the Trustee) multiplied by (B) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the product of (A) the VWAP over the Spinoff Valuation Period multiplied by (B) the number of Common Shares issued and outstanding, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Company may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Company or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such adjustment to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (f) of Section 6.6 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.16.6(f), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation (other than an issuer bid which is exempt from the requirements of Part 2 of MI 62- 104) or a take-over bid (other than an take-over bid which is exempt from the requirements of Part 2 of MI 62-104) under Applicable Securities Legislation by a Subsidiary of the Company for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(g) ifIn any case in which this Section 6.6 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, in the opinion Company may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in required by such provisions for the benefit of the Holder as the Directors deem appropriate.event; pr
Appears in 2 contracts
Sources: Convertible Debenture Indenture, Convertible Debenture Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, redivide subdivide or change its re-divide the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares (or securities convertible into or exchangeable for Common Shares) to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares (or securities convertible into or exchangeable for Common Shares) to holders of Common Shares who have elected to receive dividends or distributions in the form of securities of the Corporation in lieu of cash dividends or cash distributions paid in the ordinary course on the securities of the Corporation), the Conversion Price in effect on the effective date of such subdivision, redivision, changere-division, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i), (ii) and (iii) above, shall be decreased in proportion to adjusted immediately so that it shall equal the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case price determined by multiplying the Conversion Price in effect on such the date immediately preceding the effective date of such event by a fraction fraction, the numerator of which the numerator shall be the total number of Common Shares outstanding immediately prior to on such date before giving effect to any event referred to in any of (i), (ii) or (iii) above and the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such dateevent. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 5.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible into or exchangeable into for Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;maybe.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether class other than Common Shares and other than shares distributed to holders of Common Shares who have elected to receive dividends or distributions in the Corporation form of such shares in lieu of dividends or any other corporation (including stock dividends)distributions paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible into or exchangeable for Common Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the Directorsdirectors of the Corporation, but subject to Section 7.4 the prior written consent of any stock exchange or over the counter market on which the Common Shares may be listed or if not listed with the approval of the Debenture Trustee, which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only such shares or rights, options or warrants or evidences of indebtedness or assets actually distributeddistributed were included in such fraction, as the case may be;. In clause (iv) of this subsection (c), the term “dividends or distributions paid in the ordinary course” shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of shareholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, Person or a sale sale, conveyance or conveyance lease of the property properties and assets of the Corporation as an entirety or substantially as an entirety to any other body corporatePerson or a liquidation, trust, partnership dissolution or winding-up or other entitysimilar transaction of the Corporation, any holder of a Debenture who has not exercised its right of conversion prior to the Holder shalleffective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale, conveyance or lease or liquidation, dissolution or winding-up or other similar transaction, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares common shares, shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity Person resulting from such reclassification, capital reorganization, merger, amalgamation, arrangement or consolidation, or to which such sale sale, conveyance or conveyance lease may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up or other similar transaction, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale sale, conveyance or conveyancelease or liquidation, dissolution or winding-up or other similar transaction, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors of Corporation, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 5.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)purchasing Person, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale, conveyance or lease or liquidation, dissolution or winding-up or other similar transaction, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any common shares, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this Section 5.5(d), shall be a supplemental indenture entered into pursuant to the provisions of Article 14. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.5(d), and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, arrangements, mergers, sales, conveyances, leases, liquidations, dissolutions, winding-ups or other similar transactions.
(e) In any case in which this Section 5.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.5(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.4(b).
(f) the The adjustments provided for in this Section 7.1 5.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisionsre-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.15.5, provided that, notwithstanding any other provision of this Section 5.5, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 5.5(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifIn the event of any question arising with respect to the adjustments provided in this Section 5.5, such question shall be conclusively determined by a firm of accountants appointed by the Corporation and acceptable to the Debenture Trustee (who may be the Corporation’s Auditors); such firm shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Debenture Trustee, and the Debentureholders.
(h) In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 5.5, which in the opinion of the Directorsdirectors of the Corporation, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors of the Corporation as the directors of the Corporation, in their sole discretion may determine to be equitable in the circumstances. Failure of such directors to make any such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances. For greater certainty, no adjustment shall be made to the Conversion Price as a result of the Holder issuance of Common Shares issued (i) upon the conversion of Debentures, (ii) upon the exercise of outstanding stock options granted pursuant to the stock option plan of the Corporation, (iii) pursuant to the proposed acquisition of IR Gurus or Evolved Games by the Corporation and (iv) upon the issuance of additional securities of the Corporation in a subsequent financing.
(i) No adjustment in the Conversion Price shall be made in respect of any event described in Sections 5.5(a), 5.5(b) or 5.5(c) other than the events described in Sections 5.5(a)(i) or 5.5(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(j) Except as stated above in this Section 5.5, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the Current Market Price for such Common Shares on the date of issuance or the then applicable Conversion Price.
Appears in 2 contracts
Sources: Trust Indenture (Red Mile Entertainment Inc), Trust Indenture (Red Mile Entertainment Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(asubsection 6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to subsection 6.5(m) . If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this subsection 6.5(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this subsection 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this subsection 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this subsection 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this subsection 6.5(d) applies shall be given in accordance with Section 6.10. The Corporation shall not become a party to any Merger Event unless its terms are consistent with this subsection 6.5(d) .
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to subsection 6.5(c), and (ii) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to subsection 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation at its option chooses to distribute such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the five-day VWAP immediately prior to the ex-distribution date and of which the numerator shall be the five-day VWAP for the first five trading days that occur immediately post the ex- distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex- dividend trading commences for such distribution on the TSX (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this Section 7.1.
(gsubsection 6 . 5 ( f ) if, to any issuer bid would result in a decrease in the opinion of the DirectorsConversion Price, the provisions of no adjustment shall be made for such issuer bid under this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriatesubsection 6.5(f) .
Appears in 2 contracts
Sources: Indenture (Aurora Cannabis Inc), Indenture (Aurora Cannabis Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Shares, or (iii) issue Shares or securities convertible into Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than the issue of securities to holders of Shares who have elected to receive dividends or distributions in the form of securities of the Corporation in the ordinary course), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased by multiplying such Conversion Price by a fraction, the numerator of which is the number of Shares outstanding immediately prior to the effectiveness of the events referred to in proportion to (i) and (iii) above and the denominator of which is the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution, or shall, in the case of any of the events referred to in (ii) above, be increased decreased by multiplying such Conversion Price by a fraction, the numerator of which is the number of Shares outstanding immediately prior to the effectiveness of the event referred to in proportion to (ii) above and the denominator of which is the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a4.4(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under subsection (b) and (c) of this Section 4.4.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
plus the total number of additional Shares offered for subscription or purchase (i) Common Shares owned by or held for into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Shares (or securities convertible into Shares) actually issued upon the exercise of such shares options, rights or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;warrants.
(dc) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a4.4(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Shares then sought to be acquired by it, the such number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 4.4(c), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any Shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 4.4(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 18. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.4(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances and to any successive liquidation or winding up or other similar transaction. For greater certainty, nothing in this Section 4.4(c) shall affect or reduce the requirement for any Person to make a Change of Control Offer and notice of any transaction to which this Section 4.4(c) applies shall be given in accordance with Section 4.9.
(d) If the Corporation shall make a distribution to all holders of all or substantially all of the Shares of the Corporation, of evidences of indebtedness or other assets of the Corporation or dividends or distributions, including securities (but excluding any issuance of options, rights or warrants for which any adjustment was made pursuant to Section 4.4(b) (the “Distributed Securities”)), then in each such case (unless the Corporation distributes such Distributed Securities to the Debentureholders on such dividend or distribution date (as if each holder had converted such Debenture into Shares immediately preceding the record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Share on such record date and of which the numerator shall be the Current Market Price per Share on such record date less the fair market value (as determined by the Board of Directors in good faith, whose determination shall, absent manifest error, be conclusive evidence of such fair market value, subject to approval by the Exchange and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Share (determined on the basis of the number of Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as so determined) of the portion of the Distributed Securities so distributed applicable to one Share is equal to or greater than the Current Market Price per Share on such record or effective date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (d) of Section 4.4 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Shares.
(e) If an issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Share having a fair market value (determined as provided below) that exceeds the Current Market Price per Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which:
(i) the denominator shall be the sum of:
(A) the fair market value of the aggregate consideration (the fair market value (as determined by the Board of Directors in good faith, whose determination shall, absent manifest error, be conclusive evidence of such fair market value, subject to approval by the Exchange and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Shares validly tendered and not withdrawn as of the Expiration Time (the Shares deemed so accepted, up to any such maximum, being referred to as the case may be;“Purchased Shares”); and
(B) the product of the number of Shares outstanding (less any Purchased Shares and excluding any Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Share on the Expiration Date; and
(ii) the numerator of which shall be the product of the number of Shares outstanding (including Purchased Shares but excluding any Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Share on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by Applicable Law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Shares actually purchased, if any. If the application of this Section 4.4(e) to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this Section 4.4(e). For purposes of this Section 4.4(e), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Shares but shall exclude any normal course issuer bid pursuant to the rules and regulations of the Exchange or other exchange or quotation system where the Shares are listed and which is exempt from the formal issuer bid requirements of Applicable Securities Legislation, and all references to “purchases” of Shares in issuer bids (and all similar references) shall mean and include the purchase of Shares in issuer bids and all references to “tendered Shares” (and all similar references) shall mean and include Shares tendered in issuer bids.
(f) In any case in which this Section 4.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the Date of Conversion or such later date as such holder would, but for the provisions of this Section 4.4(f), have become the holder of record of such additional Shares pursuant to Section 4.3(b).
(g) The adjustments provided for in this Section 7.1 4.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.14.4(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gh) if, in For the opinion purpose of calculating the Directors, the provisions number of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.Shares out
Appears in 2 contracts
Sources: First Supplemental Convertible Debenture Indenture (Mogo Inc.), Convertible Debenture Indenture (Mogo Finance Technology Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment Period, the Corporation shall:
Company shall (i) subdividepay a dividend in shares of its capital stock (other than an issuance of shares of capital stock to holders of Common Stock who have elected to receive a dividend in shares in lieu of cash), redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) subdivide its outstanding shares of Common Stock, (iii) reduce, consolidate or combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; , or (iv) issue by reclassification of its shares of Common Stock any shares of the Conversion Price in effect on Company, the effective date number of such subdivision, redivision, change, reduction, combination shares a Holder of a Debenture thereafter surrendered for conversion shall be entitled to receive shall be the number of shares of Common Stock of the Company which he would have owned or consolidation, as would have been entitled to receive after the case may be, shall in the case happening of any of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from described above had such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding Debenture been converted immediately prior to the happening of such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateevent. Such adjustment shall be made successively whenever any event referred such effective date or record date shall occur. An adjustment made pursuant to in this Section 7.1(asubsection (a) shall occur;become effective retroactively, immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision, reduction, consolidation, combination or reclassification.
(b) if and whenever If the Company shall at any time during issue or sell or be deemed pursuant to the Adjustment Periodprovisions of subsections 8.3(c) and (d) hereof to have issued or sold shares of its Common Stock for consideration per share less than the Initial Conversion Price then in effect with respect to such Common Stock, then the Initial Conversion Price shall be reduced by multiplying it by a fraction, the Corporation numerator of which equals the number of shares of Common Stock outstanding prior to the sale or issuance plus the number of shares of Common Stock which would have been issued in the transaction if the Initial Conversion Price had been applied, and the denominator of which equals the number of shares of Common Stock outstanding after the sale or issuance plus the number of shares of Common Stock actually issued in the transaction.
(c) In case at any time after the date hereof the Company shall fix in any manner grant (whether directly or by assumption in a record date merger or otherwise) any rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or other securities convertible into or exchangeable for Common Stock (such rights or options being herein called "Options" and such convertible or exchangeable stock or securities being herein called "Convertible Securities") at an option or conversion price per share of Common Stock (determined by dividing: (i) the total amount, if any, received or receivable by the Company as consideration for the granting of such Options, plus the minimum aggregate amount of additional consideration payable upon the exercise of such Options, plus, in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock of the Company, issuable upon the exercise of such Options and in the case of Convertible Securities, upon conversion thereof) less than the Initial Conversion Price then in effect with respect to such Common Stock, then the total maximum number of shares of Common Stock issuable upon the exercise and conversion of such Options and Convertible Securities shall be deemed to be outstanding and to have been issued and sold by the Company as of the date of the issue or sale of the Options, for such price per share. No sale, issuance or transfer of shares of Common Stock shall be deemed to have been made upon the actual issuance of rightssuch Common Stock except as otherwise provided in subsection 8.3(e) hereof.
(d) In case at any time after the date hereof the Company shall in any manner issue or sell (whether directly or by assumption in merger or otherwise) any Convertible Securities, options whether or warrants not the rights to exchange or convert thereunder are immediately exercisable, and the price per share of Common Stock issuable upon such conversion or exchange (determined by dividing: (i) the total amount received or receivable by the Company, as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities) shall be less than the Initial Conversion Price then in effect with respect to such Common Stock, then the total maximum number of shares of Common Stock issuable upon conversion of all such Convertible Securities shall be deemed to be outstanding and to have been issued and sold by the Company as of the date of the issue or sale of the Convertible Securities, for such price per share. No sale, issuance or transfer of shares of Common Stock shall be deemed to have been made upon the actual issuance of such Common Stock except as otherwise provided in subsection 8.3(e) hereof.
(e) If the purchase price payable or number of shares of Common Stock subject to purchase as provided for in any Options referred to in subsection 8.3(c) hereof, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in subsections 8.3(c) or (d), or the rate at which any Convertible Securities referred to in subsections 8.3(c) or (d) are convertible into Common Stock shall change so as to reduce the deemed sale price of Common Stock previously calculated under subsections 8.3(c) and/or (d), then a sale of shares of Common Stock shall be deemed to have occurred for the purposes of subsections 8.3(c) and/or (d), as applicable, with appropriate adjustments to be made to the number of shares of Common Stock deemed to have been sold to reflect the prior related deemed sale and such adjustments by the adjustment of the Initial Conversion Rate and Initial Conversion Price pursuant to subsections 8.3(c) or (d), as applicable.
(f) In case of any consolidation of the Company with or merger of the Company with or into another corporation or in case of any sale, transfer or lease to another corporation of all or substantially all of the holders property of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record dateCompany, the Conversion Price Company or such successor or purchasing corporation, as the case may be, shall be adjusted immediately after such record date so execute an agreement that it the Holder of a Debenture shall equal have the amount determined by multiplying right thereafter upon payment of the Initial Conversion Price in effect on immediately prior to such record date by a fraction, action to purchase upon conversion of the Debenture the kind and amount of shares and other securities and property which the numerator shall be Holder would have owned or would have been entitled to receive after the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) happening of such rightsconsolidation, options merger, sale, transfer or warrants, and of which lease had the denominator Debenture been converted immediately prior to such action. The Company shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account give prompt written notice of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose execution of any such computation;agreement to the Holder of each Debenture at the address of such Holder as shown on the records of the Company. Such agreement shall provide for subsequent adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 8.3, after the happening of such consolidation, merger, sale, transfer or lease. The provisions of this subsection 8.3(f) shall similarly apply to successive consolidations, mergers, sales, transfers or leases.
(iig) such adjustment The provisions of this Section 8.3 shall be made successively whenever such not apply to any currently outstanding securities of the Company or any management stock grants or sales, stock options or shares of Common Stock issued upon exercise of stock options issued to officers, directors, employees or consultants of the Company pursuant to a record date is fixed;plan heretofore adopted and approved by the Board of Directors of the Company.
(iiih) to the extent that any such rights, options or warrants are not exercised prior to Upon the expiration thereofof any Option or the termination of any right to convert or exchange any Convertible Securities without the issuance of shares of Common Stock, the Initial Conversion Price shall be readjusted to the Initial Conversion Price which would then be in effect if such record date had not been fixed or to have prevailed absent the Conversion Price which would then be in effect based upon adjustment made as a result of the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise issuance of such rights, options Options or warrants, as the case may be;Convertible Securities.
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) In case any Options shall be issued in connection with the issue or sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued without consideration.
(j) In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the amount received therefor by the Company. In case any classshares of Common Stock, whether Options or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the Corporation or any consideration other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of than cash received by the Corporation, then, in each such case, the Conversion Price Company shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (of such consideration, as determined by the DirectorsBoard of Directors of the Company.
(k) If the Common Stock issuable upon the conversion of the Debentures shall be changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares or stock dividend provided for above, or a reorganization, merger, consolidation or sale of assets provided for in this Section 8.3), then, and in each such event, each Holder of Debentures shall have the right thereafter to convert such Debentures into the kind and amount of shares of Common Stock and other securities and property receivable upon such reorganization, reclassification, or other change by the Holders of the number of shares of Common Stock into which such Debentures might have been converted, as reasonably determined by the Company's board of directors, immediately prior to such reorganization, reclassification, or change, all subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price further adjustment as provided that:herein.
(il) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever If at any time during the Adjustment Period, or from time to time there is a reclassification of the Common Shares or shall be a capital reorganization of the Corporation Common Stock (other than as described a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 7.1(a8.3) or a consolidation, amalgamation, arrangement merger or merger consolidation of the Corporation Company with or into any other body corporate, trust, partnership or other entityanother corporation, or a the sale of all or conveyance substantially all of the property Company's properties and assets of the Corporation as an entirety or substantially as an entirety to any other body corporateperson, trustthen, partnership as a part of such reorganization, merger, consolidation or other entitysale, provision shall be made as reasonably determined by the Holder shall, upon Company's board of directors so that the exercise Holders of the Conversion Right, Debentures shall thereafter be entitled to receive and shall acceptupon conversion of such Debentures, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares stock or other securities or property of the Corporation Company or of the body corporate, trust, partnership or other entity successor corporation resulting from such mergermerger or consolidation or sale, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the a Holder of Common Stock deliverable upon conversion would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale consolidation or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;sale.
(em) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the The adjustments provided for in this Section 7.1 8.3 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive divisions, subdivisions, redivisions, reductions, combinations, consolidations, distributionsissues, issues distributions or other events contemplated herein resulting in any adjustment under the provisions of this Section 7.1Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Initial Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one (1) percent in the Initial Conversion Price then in effect; provided, however, that any adjustments which by reason of this subsection (l) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gn) ifUpon each adjustment of the Initial Conversion Price, the Company shall give prompt written notice thereof addressed to the registered Holders at the address of such Holders as shown on the records of the Company, which notice shall state the Initial Conversion Price resulting from such adjustment and the increase or decrease, if any, in the opinion number of shares issuable upon the conversion of such Holder's Debentures, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
(o) In the event of any question arising with respect to the adjustments provided for in this Section 8.3, such question shall be conclusively determined by a firm of independent certified public accountants appointed by the Company (who may be the auditors of the Directors, Company) and acceptable to the provisions holders of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights at least 50% of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit principal amount of the Holder as Debentures outstanding; such accountants shall have access to all necessary records of the Directors deem appropriateCompany and such determination shall be binding upon the Company, and the Debenture Holders.
Appears in 2 contracts
Sources: Subscription and Purchase Agreement (Renaissance Entertainment Corp), Subscription and Purchase Agreement (Renaissance Entertainment Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time only as follows:
(a1) if and whenever at If shares of Common Stock are issued as a dividend or other distribution on any time during class of stock of the Adjustment PeriodCompany, the Corporation shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price which would otherwise be in effect at the opening of business on the effective day following the date fixed for determination of stockholders entitled to receive such subdivision, redivision, change, reduction, combination dividend or consolidation, as the case may be, other distribution shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case reduced by multiplying the such Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding immediately prior to at the close of business on the date fixed for such date determination and the denominator shall be the sum of such number of shares and the total number of Common Shares outstanding shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such datedetermination. Such adjustment shall be made successively whenever any event referred to in For the purpose of this Section 7.1(a) shall occur;
paragraph (b) if and whenever 1), the number of shares at any time during outstanding shall include shares held by the Adjustment PeriodCompany if such dividend or distribution is paid or made in respect thereof.
(2) If the Common Stock is subdivided into a greater or combined into a lesser number of shares of Common Stock, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such immediately prior thereto, or immediately prior to the record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on for such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options subdivision or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such combination if a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be proportionately adjusted immediately after such record date so that it shall equal will bear the price determined by multiplying same relation to the Conversion Price in effect on immediately prior to such subdivision or combination, or such record date by a fractiondate, of which the numerator shall be as the total number of shares of Common Shares Stock outstanding on immediately prior to such subdivision or combination, or such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject shall bear to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on immediately after such subdivision or combination or such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
date. For purposes of this paragraph (i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made2), the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such number of shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during outstanding shall include shares held by the Adjustment PeriodCompany if such subdivision or combination affects such shares.
(3) In case of any capital reorganization of the Company, there is a or of any reclassification of the Common Shares Stock, or a capital reorganization in case of the Corporation other than as described in Section 7.1(a) consolidation of the Company with, or a consolidation, amalgamation, arrangement or the merger of the Corporation with or into Company into, any other body corporate, trust, partnership corporation or other entity, or a sale or conveyance of the property sale of all or substantially all of the Company's properties and assets of the Corporation as an entirety or substantially as an entirety to any other body corporatecorporation, trusteach Convertible Note shall after such capital reorganization, partnership reclassification, consolidation, merger, or other entity, sale entitle the Holder shall, upon the exercise of the Conversion Right, be entitled holder to receive and shall accept, in lieu of upon conversion the number of shares then sought to be acquired by it, the number of Common Shares stock or other securities or property of the Corporation Company, or of the body corporate, trust, partnership or other entity corporation resulting from such merger, amalgamation, arrangement consolidation or consolidation, surviving such merger or to which such sale or conveyance may shall be made, as the case may be, that to which the Holder holder of securities deliverable (at the time of such capital reorganization, reclassification, consolidation, merger, or sale) upon conversion of such Convertible Note would have been entitled to receive on upon such reclassification, capital reorganization, reclassification, consolidation, amalgamation, arrangement merger or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it sale; and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any such case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.16(d) with respect to the rights and interests thereafter of the holders of Convertible Notes shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or any property thereafter deliverable on the conversion of the Convertible Notes. Any such adjustment which shall be approved by the Company's Board of Directors shall for all purposes of this paragraph conclusively be deemed to be an appropriate adjustment. The subdivision or combination of shares of Common Stock deliverable upon conversion of the Convertible Notes at any time outstanding into a greater or lesser number of shares of Common Stock (whether with or without par value) shall not be deemed to be a reclassification of the Common Stock for the purposes of this paragraph.
(g4) if, in For the opinion purposes of any adjustment of the DirectorsConversion Price pursuant to this Section 6(d), the following provisions shall be applicable:
(a) in case of the issuance of Common Stock for a consideration part or all of which shall be cash (including such issuance upon exercise of rights, warrants or options, granted without consideration, to subscribe for or purchase such shares), the amount of the cash consideration shall be the amount of such cash received by the Company, provided that no deduction shall be made for any commissions, discounts or expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith; and
(b) in case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the lower of the fair value thereof as determined by the Board of Directors of the Company or the value of the shares issued based on the Current Market Value of the Common Stock (determined as provided in Section 6(d)(F)).
(5) For the purpose of this Section 7.1 are not strictly applicable6(d)(A), shares of Common Stock or if strictly applicable would not fairly protect other securities held in the rights treasury of the Holder Company shall not be deemed to be outstanding, except as specifically provided herein, and the sale or other disposition of any shares of Common Stock or other securities held in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit treasury of the Holder as the Directors deem appropriateCompany shall be deemed an issuance thereof.
Appears in 2 contracts
Sources: Note Purchase Agreement (I2 Telecom International Inc), Note Purchase Agreement (I2 Telecom International Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall will be subject to adjustment from time to time as follows:
(a) if and whenever In case the Company shall at any time during or from time to time after the Adjustment Perioddate hereof (A) pay a dividend, or make a distribution, on the Corporation shall:
outstanding shares of Common Stock in shares of Common Stock; (iB) subdivide, redivide or change its subdivide the outstanding shares of Common Shares into a greater number Stock; (C) combine the outstanding shares of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares Stock into a smaller number of such shares; (D) issue by reclassification of the shares of Common Stock any shares of Capital Stock of the Company, then, and in each such case, the Conversion Price in effect immediately prior to such event or the record date therefor, whichever is earlier, shall be adjusted so that the holder of any Note thereafter surrendered for conversion into Common Stock shall be entitled to receive, for each $100 of outstanding principal amount of Notes, the number of shares of Common Stock of the Company which such holder would have owned or have been entitled to receive after the happening of any of the events described above, had such $100 principal amount of Notes been surrendered for conversion immediately prior to the happening of such event or the record date therefor, whichever is earlier. An adjustment made pursuant to this clause (a) shall become effective (x) in the case of any such dividend or distribution, immediately after the close of business on the effective record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution, or (y) in the case of such subdivision, redivisionreclassification or combination, change, reduction, combination or consolidation, as at the case may be, shall in close of business on the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from day upon which such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such datecorporate action becomes effective. Such No adjustment shall be made successively whenever pursuant to this clause (a) in connection with any event referred transaction to in this which Section 7.1(a10.6(e) shall occur;applies.
(b) if and whenever If at any time during following the Adjustment PeriodClosing Date, the Corporation Company shall fix a record date for the issuance issue shares of Common Stock (or rights, options warrants or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or other securities convertible into or exchangeable into for shares of Common SharesStock (collectively "CONVERTIBLE SECURITIES")) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading greater of (i) the Initial Conversion Price on and (ii) the Current Market Price per share of Common Stock as of the date of issuance of such record dateshares (or, in the case of Convertible Securities, less than the greater of (i) the Initial Conversion Price and (ii) the Current Market Price as of the date of issuance of the Convertible Securities in respect of which shares of Common Stock were issued), then the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying (A) the Conversion Price in effect on the day immediately prior to such record date by (B) a fraction, the numerator of which the numerator shall be the sum of (1) the number of shares of Common Stock outstanding on such date and (2) the number of shares of Common Stock purchasable at the greater of (i) the Initial Conversion Price and (ii) the then Current Market Price per share with the aggregate consideration receivable by the Company for the total number of shares of Common Shares Stock so issued (or into which the Convertible Securities may convert), and the denominator of which shall be the sum of (x) the number of shares of Common Stock outstanding on such record date multiplied and (y) the number of additional shares of Common Stock issued (or into which the Convertible Securities may convert). An adjustment made pursuant to this Section 10.6(b) shall be made on the next Business Day following the date on which any such issuance is made and shall be effective retroactively to the close of business on the date of such issuance. For purposes of this Section 10.6(b), the aggregate consideration receivable by the Twenty Day Weighted Average Trading Price on such record date, less Company in connection with the fair market value issuance of shares of Common Stock or of Convertible Securities shall be deemed to be equal to the sum of the aggregate offering price (as determined by the Directors, subject before deduction of underwriting discounts or commissions and expenses payable to Section 7.4third parties) of all such rightsCommon Stock and Convertible Securities plus the minimum aggregate amount, options if any, payable upon exercise or warrants, and conversion of which the denominator shall be the total number any such Convertible Securities. The issuance or reissuance of any shares of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
Stock (whether treasury shares or newly issued shares) pursuant to (i) any a dividend or distribution on, or subdivision, combination or reclassification of, the outstanding shares of Common Shares owned by Stock requiring an adjustment in the Conversion Price pursuant to Section 10.6(b), or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) any stock option plan, stock purchase plan or other benefit program of the Company or executive compensation package approved by the Company's Board of Directors involving the grant of options to employees or directors of the Company will not be deemed to constitute an issuance of Common Stock or Convertible Securities by the Company to which this Section 10.6(b) applies. Upon the expiration unexercised of any Convertible Securities for which an adjustment has been made pursuant to this Section 10.6(b), the adjustments shall forthwith be reversed to effect such rate of conversion as would have been in effect at the time of such expiration or termination had such Convertible Securities, to the extent outstanding immediately prior to such expiration or termination, never been issued. No adjustment shall be made successively whenever such a record date is fixed;
(iiipursuant to this Section 10.6(b) in connection with any transaction to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common SharesSection 10.6(e) actually issued upon the exercise of such rights, options or warrants, as the case may be;applies.
(c) if and whenever In case the Company shall at any time during or from time to time after the Adjustment Period date hereof declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution of stock or other securities, evidences of indebtedness or property or Convertible Securities of the Corporation shall fix a record date for the making of a distribution to all Company or substantially all the holders any of its outstanding Common Shares Subsidiaries by way of (i) shares of any classdividend, whether of the Corporation spinoff, self-tender or any other corporation (including stock dividendsotherwise), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of on its indebtedness or (iv) assets (including cash) of the CorporationCommon Stock, then, and in each such case, the Conversion Price shall be adjusted by multiplying (1) the applicable Conversion Price on the day immediately after prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution by (2) a fraction, the numerator of which shall be the average Current Market Price of the Common Stock for the period of 20 Trading Days preceding such record date less the Fair Market Value per share of Common Stock (as determined in good faith by the Board of Directors, a certified resolution with respect to which shall be mailed to each holder of Notes) of such dividend or distribution, and the denominator of which shall be such average Current Market Price of the Common Stock. The Company acknowledges that this Section 10.6(c) shall not constitute a waiver of Section 7.2 of this Agreement. No adjustment shall be made pursuant to this Section 10.6(c) in connection with any transaction to which Section 10.7 applies.
(d) In case a tender or exchange offer made by the Company or any Affiliate of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer shall involve the payment by the Company or such Affiliate of consideration per share of Common Stock having a Fair Market Value at the last time (the "EXPIRATION TIME") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds the Current Market Price per share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be reduced so that it the same shall equal the price determined by multiplying the Conversion Price in effect on such record date immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction, fraction (which shall not be greater than one) of which the numerator shall be the total number of Common Shares shares of Capital Stock outstanding on such record date (including any tendered or exchanged shares) at the Expiration Time multiplied by the Twenty Current Market Price per share of Common Stock on the Trading Day Weighted Average Trading Price on such record date, less next succeeding the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, Expiration Time and of which the denominator shall be the total number sum of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "PURCHASED SHARES") and (ii) the product of the number of shares of Capital Stock outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price per share of Common Shares Stock on the Trading Day next succeeding the Expiration Time, such reduction to become retroactively effective immediately prior to the opening of business on the day following the Expiration Time.
(e) Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or a substantial portion of the Company's assets to another Person or other transaction which is effected in such a manner that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock is referred to herein as a "MAJOR TRANSACTION". Prior to the consummation of any Major Transaction, the Company shall make appropriate provisions (in form and substance satisfactory to the holders of a majority of the outstanding principal amount of the Notes) to insure that each of the holders of the Notes shall thereafter have the right to acquire and receive, in lieu of or in addition to (as the case may be) the shares of Common Stock immediately theretofore acquirable and receivable upon the conversion of such holder's Notes, such shares of stock, securities or assets as such holder would have received in connection with such Major Transaction if such holder had converted its Notes immediately prior to such Major Transaction. In each such case, the Company shall also make appropriate provisions (in form and substance satisfactory to the holders of a majority of the outstanding principal amount of the Notes) to insure that the provisions of this Section 10.6 shall thereafter be applicable to the Notes (including, in the case of any such consolidation, merger or sale in which the successor entity or purchasing entity is other than the Company, an immediate adjustment of the Conversion Price to the value for the Common Stock reflected by the terms of such consolidation, merger or sale, and a corresponding immediate adjustment in the number of shares of Common Stock acquirable and receivable upon conversion of the Notes, in each case if the value so reflected is less than the Conversion Price in effect immediately prior to such consolidation, merger or sale). The Company shall not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor corporation (if other than the Company) resulting from consolidation or merger or the corporation purchasing such assets assumes by written instrument (in form reasonably satisfactory to the holders of a majority of the outstanding principal amount of the Notes then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.
(f) If any event occurs of the type contemplated by the provisions of this Section 10.6 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company's Board of Directors shall make an appropriate adjustment in the Conversion Price so as to protect the rights of the holders of Notes; provided that no such adjustment shall increase the Conversion Price as otherwise determined pursuant to this Section 10.6 or decrease the number of shares of Common Stock of the Company issuable upon conversion of each Note.
(g) For purposes of this Section 10.6, the number of shares of Common Stock at any time outstanding shall not include any shares of Common Stock then owned or held by or held for the account of the Corporation Company.
(h) Anything in this Section 10.6 to the contrary notwithstanding, the Company shall not be required to give effect to any adjustment in the Conversion Price unless and until the net effect of one or any subsidiary more adjustments (each of which shall be deemed not carried forward), determined as above provided, shall have resulted in a change of the Conversion Price by at least one percent, and when the cumulative net effect of more than one adjustment so determined shall be to change the Conversion Price by at least one percent, such change in Conversion Price shall thereupon be outstanding given effect.
(i) The certificate of any firm of independent public accountants of recognized national standing selected by the Board of Directors (which may be the firm of independent public accountants regularly employed by the Company) shall be presumptively correct for any computation made under this Section 10.6.
(j) If the Company shall take a record of the holders of its Common Stock for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such entitling them to receive a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership dividend or other entitydistribution, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall acceptthereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire Stock issuable upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) right of conversion granted by this Section 10.6 or in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price then in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price shall be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion required by reason of the Directors, the provisions taking of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriaterecord.
Appears in 1 contract
Sources: Note Purchase Agreement (Q Med Inc)
Adjustment of Conversion Price. The Subject to the requirements of a Recognized Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
: (i) subdivide, redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than cash dividends or distributions for which an adjustment would be made under Section 4.6(b)) (a “Common Share Reorganization”), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution, as the case may be, shall in be adjusted effective immediately after the case record date at which the holders of Common Shares are determined for the purpose of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case Share Reorganization by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such record date and by a fraction: (1) the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become so, that they were convertible or exchangeable on the record date on the basis upon which they first become convertible or exchangeable); and (2) the numerator of which shall be the number of Common Shares outstanding on such record date before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) 4.6 shall occur;. Any such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 4.6.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any applicable period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a4.6(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Corporation, any Holder shallof a Debenture who has not exercised its right of conversion prior to the date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the such Holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereofof this Indenture, as the case may be, the Holder had been the registered holder Holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 4.6(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments prior to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisionsor contemporaneously with any such reclassification, redivisionscapital reorganization, reductionsconsolidation, combinationsamalgamation, consolidationsarrangement, distributionsmerger, issues share exchange, acquisition, combination, sale or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) ifconveyance or liquidation, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, dissolution or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.winding-up,
Appears in 1 contract
Sources: Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, redivide re-divide or change its outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price in effect on the effective date of such subdivision, redivisionre-division, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision re-division or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each such case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted decreased immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus that number of Common Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) plus the total number of additional Common Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any Common Shares owned by or held for the account of the corporation Corporation or any subsidiary Subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) ; such adjustment shall be made successively whenever such a record date is fixed;
(iii) ; to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period Period, the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends)corporation, (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); ) and rights, options or warrants to subscribe for or purchase Common Shares or other securities convertible into or exchangeable for Common Shares at a price per share, or having a conversion or exercise price per share not less than 95% of the Current Market Price on such record date) to subscribe for or purchase Common Shares or other securities convertible into or exchangeable for Common Shares for a period expiring not more than 45 days after such record date, (iii) evidences of its indebtedness Indebtedness or (iv) assets (including cash) of the CorporationCorporation or any Subsidiary, then, in each such case, the Conversion Price shall be adjusted decreased immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 acting reasonably, which determination shall be conclusive) of such shares, rights, options, warrants, evidences of indebtedness Indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Current Market Price; and Common Shares owned by or held for the account of the Corporation or any subsidiary Subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) ; such adjustment shall be made successively whenever such a record date is fixed;
(iii) ; to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness Indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder each Debentureholder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder each Debentureholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder such Debentureholder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which . To give effect to or to evidence the provisions of this Section 7.1(b) 7.1(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Pricesuch purchasing body corporate, no such adjustment shall be made ifpartnership, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options trust or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance, enter into an agreement which shall provide for the application of the provisions set forth in such kind this Trust Indenture with respect to the rights and number as it would have received if it had been a holder interests thereafter of Common Shares the Debentureholders to the end that the provisions set forth in this Trust Indenture shall thereafter correspondingly be made applicable with respect to any shares, other securities or property to which the Debentureholders are entitled on the applicable record date or effective date, as the case may be, by virtue exercise of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;Right; and
(fe) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisionsre-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
Trust shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares Trust Units into a greater number of such shares; or
units, (ii) reduce, combine or consolidate its the outstanding Common Shares Trust Units into a smaller number of such shares; units, or (iii) issue Trust Units to the holders of all or substantially all of the outstanding Trust Units by way of a dividend or distribution (other than the issue of Trust Units to holders of Trust Units who have elected to receive dividends or distributions in the form of Trust Units in lieu of cash dividends or cash distributions paid in the ordinary course on the Trust Units), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Trust Units by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares Trust Units resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares Trust Units resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Trust Units by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Trust Units under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation Trust shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares Trust Units entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares Trust Units (or securities convertible or exchangeable into Common SharesTrust Units) at a price per share unit (or having a conversion or exchange price per shareunit) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Trust Unit on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied plus a number of Trust Units equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Trust Units offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Trust Unit, and of which the denominator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Trust Units offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares Trust Units (or securities convertible or exchangeable into Common SharesTrust Units) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation Trust shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares Trust Units of (i) shares units of any class, whether class other than Trust Units and other than units distributed to holders of Trust Units who have elected to receive dividends or distributions in the Corporation form of such units in lieu of dividends or any other corporation (including stock dividends)distributions paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof as at a specified date to in Section 7.1(bsubscribe for or purchase Trust Units or securities convertible into Trust Units for a period of not more than 45 days after such date)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Trust Unit on such record date, less the fair market value (as determined by the Directorsdirectors of APF Energy, subject to Section 7.4 on behalf of the Trust, with the approval of the Debenture Trustee, which determination shall be conclusive) of such sharesunits, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Trust Unit. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only such shares or units, rights, options or warrants or options, warrants, evidences of indebtedness or assets actually distributeddistributed were included in such fraction, as the case may be;. In clause (iv) of this subsection (c) the term "dividends or distributions paid in the ordinary course" shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of unitholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares Trust Units or a capital reorganization of the Corporation Trust other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation Trust with or into any other body corporate, trust, partnership person or other entity, ; or a sale or conveyance of the property and assets of the Corporation Trust as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallTrust, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale, conveyance, liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Trust Units then sought to be acquired by it, the number of Common Shares trust units, shares or other securities or property assets of the Corporation Trust or of the body corporate, trust, partnership person or other entity resulting from such mergerreclassification, capital reorganization, consolidation, amalgamation, arrangement or consolidationmerger, or to which such sale or conveyance may be mademade or which holders of Trust Units receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, sale sale, conveyance, liquidation, dissolution or conveyancewinding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares Trust Units sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors of APF Energy, on behalf of the Trust, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Trust, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any trust units, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable exercise of its conversion rights thereafter. Any indenture entered into between the Trust and the Debenture Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Trust, any successor to the Trust or such purchasing person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5 and which shall apply to successive reclassifications, capital reorganizations, consolidations, amalgamations, arrangements, mergers, sales or conveyances or to a liquidation, dissolution or winding-up.
(e) In any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date or effective datefor an event referred to herein, as the case Trust may bedefer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Trust Units issuable upon such conversion by virtue reason of the Principal Sum having then been converted into Common Shares at adjustment required by such event; provided, however, that the Trust shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Trust Units upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Trust Units declared in favour of holders of record of Trust Units on and after the Date of Conversion Price in effect on or such later date as such holder would, but for the applicable provisions of this Section 6.5(e), have become the holder of record or effective date, as the case may be;of such additional Trust Units pursuant to Section 6.4(b).
(f) the The adjustments provided for in this Section 7.1 6.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.16.5(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Trust Units outstanding, Trust Units owned by or for the benefit of the Trust shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question shall be conclusively determined by a firm of chartered accountants appointed by the Trust and acceptable to the Debenture Trustee (who may be the auditors of the Trust); such accountants shall have access to all necessary records of the Trust and such determination shall be binding upon the Trust, the Debenture Trustee, and the Debentureholders.
(i) In case the Trust shall take any action affecting the Trust Units other than action described in this Section 6.5, which in the opinion of the Directorsdirectors of APF Energy, on behalf of the provisions of this Section 7.1 are not strictly applicableTrust, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors of APF Energy, on behalf of the Trust, subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, as the directors of APF Energy, on behalf of the Trust, in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.
(j) Subject to the prior written consent of the Toronto Stock Exchange or such provisions for other exchange on which the Debentures are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in Sections 6.5(a), 6.5(b) or 6.5(c) other than the events described in 6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled to participate in such event (or to receive the benefit of such event on conversion of their Debentures) on the Holder same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 6.5, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Trust Units at less than the Current Market Price for such Trust Units on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Maturity Date the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares or other issued shares in the capital of the company (the "Shares") into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than the issue of Shares to holders of Shares who have elected to receive dividends or distributions in the form of Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 6.2(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under subsections (c) and (d) of this Section 6.2.
(b) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Share distributed to holders of Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Maturity Date the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
plus the total number of additional Shares offered for subscription or purchase (i) Common Shares owned by or held for into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Shares (or securities convertible into Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(asubsection 6.2(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a "Merger Event"), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to subsection 6.2(k). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this subsection 6.2(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable record exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this subsection 6.2(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this subsection 6.2(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this subsection 6.2(d) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this subsection 6.2(d) applies shall be given in accordance with Section 6.6. The Corporation shall not become a party to any Merger Event unless its terms are consistent with this subsection 6.2(d).
(e) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Share having a fair market value (determined as provided below) that exceeds the Current Market Price on the last date or effective date(the "Expiration Date") tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), as the case may be, Conversion Price shall be adjusted so that the same shall equal the rate determined by virtue of the Principal Sum having then been converted into Common Shares at multiplying the Conversion Price in effect immediately preceding the close of business on the applicable record or effective dateExpiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer's Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Shares validly tendered and not withdrawn as of the Expiration Time (the Shares deemed so accepted, up to any such maximum, being referred to as the case may be;"Purchased Shares") and (B) the product of the number of Shares outstanding (less any Purchased Shares and excluding any Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Shares outstanding (including Purchased Shares but excluding any Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Shares actually purchased, if any. If the application of this subsection 6.2(e) to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this subsection 6.2(e). For purposes of this subsection 6.2(e), the term "issuer bid" shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Shares and all references to "purchases" of Shares in issuer bids (and all similar references) shall mean and include the purchase of Shares in issuer bids and all references to "tendered Shares" (and all similar references) shall mean and include Shares tendered in issuer bids.
(f) the The adjustments provided for in this Section 7.1 6.2 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this subsection 6.2(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Shares outstanding, Shares owned by or for the benefit of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.2, such question shall be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Corporation and acceptable to the Trustee (who may be the Auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Trustee, and the Debentureholders.
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Section 6.2, which in the opinion of the Board of Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the Board of Directors, as the Board of Directors, in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) No adjustment in the Conversion Price shall be made in respect of any event described in subsections 6.2(a), 6.2(b), 6.2(c), or 6.2(e) other than the events described in clauses 6.2(a)(i) or 6.2(a)(ii) if the holders of the Holder Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 6.2, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Shares at less than the Current Market Price on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Sources: Secured Convertible Debenture Indenture (Starfighters Space, Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, the Corporation Convertible Term Loan Maturity Date Borrower shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or;
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a stock dividend, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a1.1(8)(a) shall occur;. Any such issue of Common Shares by way of a stock dividend shall be deemed to have been made on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 1.1(8).
(b) if If and whenever at any time during prior to the Adjustment Period, the Corporation Convertible Term Loan Maturity Date Borrower shall fix a record date for the issuance of rights, options rights or warrants to all or substantially all the any holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rights, options rights or warrants are not so issued or any such rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be have been in effect if such record date had not been fixed or to the Conversion Price which would then be have been in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period the Corporation Convertible Term Loan Maturity Date Borrower shall fix a record date for the making of a distribution to all or substantially all the any holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Common Shares or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(b)); subscribe for or purchase Common Shares or securities convertible into Common Shares) or (iii) evidences of its indebtedness or (iv) cash or other assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the DirectorsBoard of Directors with the approval of Requisite Convertible Term Loan Lenders, subject to Section 7.4 which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of or indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be have been in effect if such record date had not been fixed or to the Conversion Price which would then be have been in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) if and whenever For the purpose of any computation under subsections (b) or (c) of this Section 1.1(8), the current market price per Common Share at any time date shall be the weighted average price per share for Common Shares for the twenty (20) consecutive Trading Days ending five (5) Trading Days before such date on the Exchange (the "Current Market Price"). The weighted average price shall be determined by dividing the aggregate sale price of all Common Shares sold on such Exchange during the Adjustment Period, there is said twenty (20) consecutive Trading Days by the total number of Common Shares so sold.
(e) In the case of any reclassification or change (other than a reclassification change resulting only from consolidation or subdivision) of the Common Shares or a capital reorganization in case of the Corporation other than as described in Section 7.1(a) or a consolidation, any amalgamation, arrangement consolidation or merger of the Corporation Borrower with or into any other body corporate, trust, partnership or other entitycorporation, or a in the case of any sale or conveyance of the property properties and assets of the Corporation Borrower, as an entirety or substantially as as, an entirety to any other body corporate, trust, partnership or other entitycorporation, the Holder shall, upon Conversion Price and the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be madeShares, as the case may be, shall be adjusted so that the Holder would have been entitled to receive on any Conversion Amount shall, after such reclassification, capital reorganizationchange, amalgamation, consolidation, amalgamationmerger or sale, arrangement be convertible into the number of shares of Borrower, or mergersuch continuing, sale successor or conveyance, if, on the record date or the effective date thereofpurchaser corporation, as the case may be, which the Holder applicable Convertible Term Loan Lender would have been entitled to receive as a result of such reclassification, change, amalgamation, consolidation, merger or sale if on the effective date thereof it had been the registered holder of the number of Common Shares sought into which the Conversion Amount was convertible prior to the effective date of such reclassification, change, amalgamation, consolidation, merger or sale. No such reclassification, change, amalgamation, consolidation, merger or sale shall be acquired by it and carried into effect unless (i) in the opinion of the Board of Directors, all necessary steps shall have been taken to which it was ensure that the Convertible Term Loan Lenders shall thereafter be entitled to acquire upon the exercise receive such number of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) shares of Borrower, or 7.1(c) require that an adjustment be made to the Conversion Pricesuch continuing, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options successor or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)purchasing corporation, as the case may be, subject to adjustment thereafter in accordance with provisions similar, as nearly as may be, to those contained in this Section 1.1(8); and (ii) such kind shares constitute prescribed securities for the purposes of clause 212(1)(b)(vii)(E) of the ITA.
(f) In any case in which this Section 1.1(8) shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, Borrower may defer, until the occurrence of such event, issuing to the applicable Convertible Term Loan Lender converting after such record date and number as it would have received if it had been a holder before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that Borrower shall deliver to such Convertible Term Loan Lender an appropriate instrument evidencing such Convertible Term Loan Lender's right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such Convertible Term Loan Lender would, but for the provisions of this Section 1.1(8)(f), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 1.1(7).
(fg) the The adjustments provided for in this Section 7.1 1.1(8) are cumulative, and shall, in the case of adjustments to the Conversion Price will be computed to the nearest whole cent of one-tenth of one cent, and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section; provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.11.1(8)(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gh) ifIn the event of any question arising with respect to the adjustments provided in this Section 1.1(8), such question shall be conclusively determined by a firm of chartered accountants appointed by Borrower and acceptable to Requisite Convertible Term Loan Lenders (who may be the auditors of Borrower); such accountants shall have access to all necessary records of Borrower and such determination shall be binding upon Borrower, Agents and Convertible Term Loan Lenders, absent manifest error. If any such determination is made, Borrower will deliver an Officers' Certificate to each Convertible Term Loan Lender describing such determination.
(i) In case Borrower shall take any action affecting the Common Shares other than action described in this Section 1.1(8), which in the opinion of the Directors, the provisions Board of this Section 7.1 are not strictly applicable, or if strictly applicable Directors would not fairly protect affect the rights of Convertible Term Loan Lenders, the Holder Conversion Price shall be adjusted in such manner and at such time, by action of the Board of Directors, subject to the prior written consent of the Exchange if necessary, as the Board of Directors in their sole discretion may determine to be equitable in the circumstances. Failure of the Board of Directors to make such an adjustment shall be conclusive evidence that the Board of Directors have determined that it is equitable to make no adjustment in the circumstances.
(j) No adjustment in the Conversion Price shall be made in respect of any event described in Section 1.1(8)(a), (b) and (c) if Convertible Term Loan Lenders are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Convertible Notes prior to the effective date or record date, as the case may be, of such event.
(k) Any amendment or change to the Conversion Price shall require the prior written consent of all Convertible Term Loan Lenders, except if such amendment or change is related to an adjustment to the Conversion Price made from time to time in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriateSection 1.1(8).
Appears in 1 contract
Sources: Credit Agreement (Sr Telecom Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection (a) shall occur;
(b) if and whenever at any time during . Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options dividend or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding distribution for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon calculating the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of under subsections (ib) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.and
Appears in 1 contract
Sources: Trust Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
Trust shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares Trust Units into a greater number of such shares; or
units, (ii) reduce, combine or consolidate its the outstanding Common Shares Trust Units into a smaller number of such shares; units, or (iii) issue Trust Units to the holders of all or substantially all of the outstanding Trust Units by way of a dividend or distribution (other than the issue of Trust Units to holders of Trust Units who have elected to receive dividends or distributions in the form of Trust Units in lieu of cash dividends or cash distributions paid in the ordinary course on the Trust Units), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Trust Units by way of a dividend or distribution, as the case may be, shall in be adjusted immediately after such effective date or such record date so that it shall equal the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case price determined by multiplying the Conversion Price in effect on such effective date or record date, as applicable, by a fraction fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding immediately prior to such effective date or record as applicable date, and of which the denominator shall be the total number of Common Shares outstanding immediately after Trust Units resulting from such datesubdivision, redivision, reduction, combination or consolidation or issuance of Trust Units by way of a dividend or distribution, as the case may be. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Trust Units by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Trust Units under subsections (b) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation Trust shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares Trust Units entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares Trust Units (or securities convertible or exchangeable into Common SharesTrust Units) at a price per share unit (or having a conversion or exchange price per shareunit) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Trust Unit on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied plus a number of Trust Units equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Trust Units offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Trust Unit, and of which the denominator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Trust Units offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares Trust Units (or securities convertible or exchangeable into Common SharesTrust Units) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) Subject to the terms of this Indenture, if and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation Trust shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares Trust Units of (i) shares units of any class, whether class other than Trust Units and other than units distributed to holders of Trust Units who have elected to receive dividends or distributions in the Corporation form of such units in lieu of dividends or any other corporation (including stock dividends)distributions paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof as at a specified date to in Section 7.1(bsubscribe for or purchase Trust Units or securities convertible into Trust Units for a period of not more than 45 days after such date)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Trust Unit on such record date, less the fair market value (as determined by the Directorsdirectors of PEOC, subject to Section 7.4 on behalf of the Trust, with the approval of the Debenture Trustee, which determination shall be conclusive) of such sharesunits, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Trust Unit. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only such shares or units, rights, options or warrants or options, warrants, evidences of indebtedness or assets actually distributeddistributed were included in such fraction, as the case may be;. In clause (iv) of this subsection (c) the term "dividends or distributions paid in the ordinary course" shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of unitholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares Trust Units or a capital reorganization of the Corporation Trust other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding securities exchange, merger of the Corporation Trust with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Trust or other combination pursuant to which the Trust Units are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation Trust as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Trust) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallTrust, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, securities exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Trust Units then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation Trust or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Trust Units receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, securities exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares Trust Units sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Trust, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, securities exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Trust and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Trust, any successor to the Trust or effective datesuch purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, as capital reorganizations, amalgamations, consolidations, mergers, securities exchanges, acquisitions, combinations, sales or conveyances.
(e) In the case may beevent the Trust pays a dividend or makes a distribution to all or substantially all the holders of Trust Units consisting of capital stock, by virtue or similar equity interests in, a Subsidiary or other business unit of the Principal Sum having then been converted into Common Shares at Trust (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Trust makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of unitholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (i) the VWAP for the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the Toronto Stock Exchange, or effective date, such other national or regional exchange or market on which the Trust Units are then listed or quoted and (ii) the product of (A) the volume weighted average price (calculated in substantially the same way as the case Current Market Price is calculated for the Trust Units) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers' Certificate delivered to the Trustee) multiplied by (B) the number of Spinoff Securities distributed in respect of one Trust Unit and the numerator of which shall be the VWAP over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Trust may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Trust or any of its Subsidiaries for all or any portion of Trust Units shall expire, then, if the issuer bid shall require the payment to unitholders of consideration per Trust Unit having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Trust Unit on the last date (the "Expiration Date") tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the nearest whole cent Trustee) payable to unitholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Trust Units validly tendered and not withdrawn as of the Expiration Time (the Trust Units deemed so accepted, up to any such maximum, being referred to as the "Purchased Trust Units") and (B) the product of the number of Trust Units outstanding (less any Purchased Trust Units) at the Expiration Time and the Current Market Price per Trust Unit on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Trust Units outstanding (including Purchased Trust Units) at the Expiration Time multiplied by the Current Market Price per Trust Unit on the Expiration Date, such adjustment to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Trust is obligated to purchase Trust Units pursuant to any such issuer bid, redivisionsbut the Trust is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Trust Units actually purchased, combinationsif any. If the application of this clause (f) of Section 6.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.16.5(f), the term "issuer bid" shall mean an issuer bid under Applicable Securities Legislation (other than an issuer bid which is exempt from the requirements of Part 2 of MI 62-104) or a take-over bid (other than an take-over bid which is exempt from the requirements of Part 2 of MI 62-104) under Applicable Securities Legislation by a Subsidiary of the Trust for the Trust Units and all references to "purchases" of Trust Units in issuer bids (and all similar references) shall mean and include the purchase of Trust Units in issuer bids and all references to "tendered Trust Units" (and all similar references) shall mean and include Trust Units tendered in issuer bids.
(g) ifIn any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, in the opinion Trust may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Trust Units issuable upon such conversion by reason of the Directorsadjustment required by such event; provided, however, that the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect Trust shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Trust Units upon the rights occurrence of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.event requirin
Appears in 1 contract
Sources: Convertible Debenture Indenture (Perpetual Energy Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a12.1(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under Section 12.1(c), Section 12.1(d) and this Section 12.1(a).
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a12.1(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted or repaid into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion or repayment prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) conversion or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifrepayment right, subject to Section 12.1(l). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 12.1(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 12.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 12.1(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. The Corporation shall not become a party to any Merger Event unless its terms are consistent with this Section 12.1(d). The Conversion Price in effect at any date shall be subject to adjustment from time to time as set forth below:
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 12.1(c), and (ii) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 12.1(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation at its option chooses to distribute such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the five-day VWAP immediately prior to the ex-distribution date and of which the numerator shall be the five-day VWAP for the first five trading days that occur immediately post the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spin-off Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spin-off Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the Toronto Stock Exchange (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spin-off Valuation Period of the Spin-off Securities or, if no such prices are available, the fair market value of the Spin-off Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spin-off Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spin-off Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spin-off Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this Section 7.112.1(f) to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this Section 12.1(f). For purposes of this Section 12.1(f), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(g) if, In any case in the opinion of the Directors, the provisions of which this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors 12.1 shall make any require that an adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.shall become effect
Appears in 1 contract
Sources: Indenture (Canopy Growth Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Shares, or (iii) issue Shares or securities convertible into or exchangeable for Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than pursuant to any distribution re-investment or Share purchase plans or similar arrangements), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution (including, in the case where securities convertible into or exchangeable for Shares are distributed, the number of Shares that would have been outstanding had all such securities been exchanged for or converted into Shares on such effective date or record date), or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.4(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under Subsections 5.4(b) and 5.4(c) of this Section 5.4.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share Share (or having a conversion or exchange price per shareShare) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus that number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Twenty Day Weighted Average Trading Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Shares offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Shares (other than pursuant to any distribution re-investment or any other corporation (including stock dividendsshare purchase plans or similar arrangements), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Shares or securities convertible or exchangeable into Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) other assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Share on such record date, less the fair market value (as determined by an Investment Dealer chosen by the Directors, Corporation and subject to Section 7.4 applicable exchange or market approval, which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) Subject to Section 9.1, if and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.4(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entityperson, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entity, or a liquidation, dissolution or winding up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership person or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 5.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly equivalent as may be practicable, with respect to any shares or other securities or property to which a holder of Common Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 5 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances or other similar transactions.
(e) In any case in which this Section 5.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation shall defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends or distributions made on such additional Shares declared in favour of holders of record of Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.4(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common such additional Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.4(b).
(f) the The adjustments provided for in this Section 7.1 5.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.1.5.4(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment
(g) ifFor the purpose of calculating the number of Shares outstanding, Shares owned by or for the benefit of the Corporation or any Subsidiary of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 5.4, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation (who may be the Auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Trustee, and the Debentureholders (subject to manifest error).
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Section 5.4, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable directors would not fairly protect materially adversely affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time as the directors in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that the directors have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of any stock exchange or market upon which the Shares are then listed, as the case may be, and if required, no adjustment in the Conversion Price shall be made in respect of any event described in Section 5.4(a), Section 5.4(b) or Section 5.4(c) if the holders of the Holder Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 5.4, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Shares at less than the Current Market Price for such Shares on the date of issuance.
Appears in 1 contract
Sources: Trust Indenture (NexGen Energy Ltd.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) if and whenever at any time during If the Adjustment Period, Company shall hereafter pay a dividend or make a distribution to all holders of the Corporation shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) reducein Common Shares, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price in effect at the opening of business on the effective date following the date fixed for the determination of shareholders entitled to receive such subdivision, redivision, change, reduction, combination dividend or consolidation, as the case may be, other distribution shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case reduced by multiplying the such Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to at the close of business on the Record Date (as defined in Section 12.05(g)) fixed for such date determination and the denominator shall be the sum of such number of shares and the total number of Common Shares outstanding shares constituting such dividend or other distribution, such reduction to become effective immediately after such datethe opening of business on the day following the Record Date. Such adjustment shall be made successively whenever If any event referred to dividend or distribution of the type described in this Section 7.1(a12.05(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options is declared but not so paid or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record datemade, the Conversion Price shall again be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date dividend or distribution had not been declared.
(b) If the outstanding Common Shares shall be subdivided into a greater number of Common Shares, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, if the outstanding Common Shares shall be combined into a smaller number of Common Shares, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) If the Company shall issue rights or warrants to all or substantially all holders of its outstanding Common Shares entitling them for a period of not more than 60 days to subscribe for or purchase Common Shares, or securities convertible into Common Shares, at a price per share or Conversion Price per share less than the Current Market Price (as defined in Section 12.05(e)) on the Record Date fixed for the determination of shareholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the number of Common Shares outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Current Market Price, and of which the denominator shall be the number of Common Shares outstanding on the close of business on the Record Date plus the total number of additional Common Shares so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that Common Shares are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price shall be readjusted to be the Conversion Price which would then be in effect based had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of Common Shares (actually delivered. If such rights or securities convertible warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such date fixed for the determination of shareholders entitled to receive such rights or exchangeable into warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Current Market Price, and in determining the aggregate offering price of such Common Shares) actually issued upon the exercise of , there shall be taken into account any consideration received for such rights, options rights or warrants, as with the case may be;value of such consideration, if other than cash, to be determined by the Board of Directors.
(cd) if and whenever at any time during If the Adjustment Period the Corporation shall fix a record date for the making of a distribution Company shall, by dividend or otherwise, distribute to all or substantially all the holders of its outstanding Common Shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 12.05(a) applies) or evidences of its indebtedness, cash or other assets (including securities, but excluding (i) shares any rights or warrants of any class, whether of the Corporation a type referred to in Sections 12.05(a) or any other corporation (including stock dividends12.05(c), (ii) rights, options or warrants rights described in the second succeeding paragraph of this Section 12.05(d) (excluding those referred including rights distributed to in Section 7.1(b)); all holders of its Common Shares pursuant to a shareholder rights plan) and (iii) evidences of its indebtedness or (iv) assets (including dividends and distributions paid exclusively in cash) of (the Corporationforegoing hereinafter in this Section 12.05(d) called the "Securities"), then, in each such case, the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date (as defined in Section 12.05(e)) with respect to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in Section 12.05(e)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) on such date of the portion of the Securities so distributed applicable to one Common Share and the denominator shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Convertible Notes shall have the right to receive upon conversion of a Convertible Note (or any portion thereof) the amount of Securities such holder would have received had such holder converted such Convertible Note (or portion thereof) immediately prior to such Record Date. If such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.05(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price pursuant to Section 12.05(e) to the extent possible. Notwithstanding any other provision of this Section 12.05(d) to the contrary, rights, warrants, evidences of indebtedness, other securities, cash or other assets (including, without limitation, any rights distributed pursuant to any shareholder rights plan) shall be deemed not to have been distributed for purposes of this Section 12.05(d) if the Company makes proper provision so that each holder of Convertible Notes who converts a Convertible Note (or any portion thereof) after the date fixed for determination of shareholders entitled to receive such distribution shall be entitled to receive upon such conversion, in addition to the Common Shares issuable upon such conversion, the amount and kind of such distributions that such holder would have been entitled to receive if such holder had, immediately prior to such determination date, converted such Convertible Note into Common Shares. Notwithstanding anything in this Section 12.05(d), if, prior to the date that is five years from the last date of original issuance of the Convertible Notes, which would include the date of the exercise of the option granted to the Initial Purchasers, holders of Convertible Notes would otherwise be entitled to receive, upon conversion of the notes, Ineligible Consideration pursuant to the operation of this Section 12.05(d), such holders shall not be entitled to receive such Ineligible Consideration but the Company or its successor, as the case may be, shall have the right to deliver either such Ineligible Consideration or "prescribed securities" as defined for purposes of Clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada) with a comparable fair market value to such Ineligible Consideration. Rights or warrants distributed by the Company to all holders of Common Shares entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events: (i) are deemed to be transferred with such Common Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 12.05(d) (and no adjustment to the Conversion Price under this Section 12.05(d) shall be made). For purposes of this Section 12.05(d) and Sections 12.05(a) and (c), any dividend or distribution to which this Section 12.05(d) is applicable that also includes Common Shares, or rights or warrants to subscribe for or purchase Common Shares to which Section 12.05(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such Common Shares or rights or warrants to which Section 12.05(c) applies (and any Conversion Price reduction required by this Section 12.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such Common Shares or such rights or warrants (and any further Conversion Price reduction required by Sections 12.05(a) and (c) with respect to such dividend or distribution shall then be made, except that (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distribution", "Record Date fixed for such determination" and "Record Date" within the meaning of Section 12.05(a) and as "the date fixed for the determination of shareholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the shareholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 12.05(c) and (B) any Common Shares included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 12.05(a)).
(e) If the Company shall, by dividend or otherwise, distribute cash to all holders of its Common Shares (excluding any cash that is distributed upon an amalgamation, merger, share exchange, consolidation or combination to which Section 12.06 applies or as part of a distribution referred to in Section 12.05(d)) in an aggregate amount that, combined together with (1) the aggregate amount of any other such all-cash distributions to all holders of its Common Shares within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12.05(e) has been made, and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) of consideration payable in respect of any tender offers (within the meaning of U.S. federal securities laws) by the Company or any of its subsidiaries for all or any portion of the Common Shares concluded within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 12.05(f) has been made, exceeds 15% of the product of the Current Market Price (determined as provided in Section 12.05(g)) on the Record Date with respect to such distribution times the number of Common Shares outstanding on such date, then, and in each such case, immediately after the close of business on such record date date, the Conversion Price shall be reduced so that it the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such record date Record Date by a fraction, fraction (i) the numerator of which the numerator shall be equal to the total Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 15% and (y) the number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Record Date and (ii) the denominator of which shall be equal to the Current Market Price on such record dateRecord Date; provided, less however, that if the portion of the cash so distributed applicable to one Common Share is equal to or greater than the Current Market Price of the Common Shares on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Convertible Notes shall have the right to receive upon conversion of a Convertible Note (or any portion thereof) the amount of cash such holder would have received had such holder converted such Convertible Note (or portion thereof) immediately prior to such Record Date. Notwithstanding the foregoing, if, prior to the date that is five years from the last date of original issuance of the Convertible Notes, which would include the date of the exercise of the option granted to the Initial Purchasers, holders of Convertible Notes would otherwise be entitled to receive, upon conversion of the notes, Ineligible Consideration pursuant to the operation of this Section 12.05 (e), such holders shall not be entitled to receive such Ineligible Consideration but the Company or its successor, as the case may be, shall have the right to deliver either such Ineligible Consideration or "prescribed securities" as defined for purposes of Clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada) with a comparable fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness Ineligible Consideration. If such dividend or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed or declared. Any cash distribution to all holders of Common Shares as to which the Conversion Price Company makes the election permitted by Section 12.05(m) and as to which would then the Company has complied with the requirements of such Section shall be in effect based upon such shares or rights, options or warrants or evidences treated as not having been made for all purposes of indebtedness or assets actually distributed, as the case may be;this Section 12.05(e).
(df) if and whenever at If a tender offer (within the meaning of U.S. federal securities laws) made by the Company or any time during the Adjustment Period, there is a reclassification of its subsidiaries for all or any portion of the Common Shares or a capital reorganization expires and such tender offer (as amended upon the expiration thereof) requires the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the Corporation other than tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger resolution of the Corporation Board of Directors) that, combined together with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance (1) the aggregate of the property cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and assets described in a resolution of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise Board of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(cDirectors), as of the case may beexpiration of such tender offer, of consideration payable in such kind and number as it would have received if it had been a holder respect of Common Shares on the applicable record date or effective date, as the case may beany other tender offers, by virtue the Company or any of its subsidiaries for all or any portion of the Principal Sum having then been converted into Common Shares at Shares, expiring within the Conversion Price 12 months preceding the expiration of such tender offer and in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in respect of which no adjustment pursuant to this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.12.05
Appears in 1 contract
Sources: Indenture (Nortel Networks Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date time shall be subject to adjustment from time to time upon the happening of certain events, as follows:
(ai) if and whenever In case the Issuer shall at any time during after the Adjustment Perioddate hereof (1) declare or pay a dividend in shares of Common Stock or make a distribution of Common Stock, the Corporation shall:
(i2) subdivide, redivide or change subdivide its outstanding shares of Common Shares into a greater number of such shares; or
Stock, (ii3) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of shares of Common Stock or (4) issue any shares of its capital stock in a reclassification of Common Stock (including any such shares; reclassification in connection with a consolidation or merger in which the Conversion Price in effect on Issuer is the continuing entity), the number of shares of Common Stock purchasable upon conversion immediately prior thereto shall be adjusted so that the Holder of the Securities shall be entitled to receive the number shares of Common Stock or other securities of the Issuer which he would have owned or have been entitled to receive after the happening of any of the events described above, had conversion occurred immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (i) shall become effective immediately after the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion event retroactive to the number of outstanding Common Shares resulting from record date, if any, for such subdivision, redivision or change, or shall, in the case of the events referred to in event.
(ii) above, be increased in proportion to In case the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator Issuer shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during after the Adjustment Period, the Corporation shall fix a record date for the issuance of hereof issue rights, options or warrants to all or substantially all the holders of its outstanding Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable into Common Shares) Stock at a price per share which is lower at the record date mentioned below than the higher (or having a conversion or exchange A) of the market price per shareshare of the Common Stock (as defined in Section (v) less than the Twenty Day Weighted Average Trading Price on such record date, below) and (B) the Conversion Price Price, then the number of shares of Common Stock thereafter purchasable upon conversion shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date number of shares of Common Stock theretofore purchasable upon conversion by a fraction, of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such the record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject for determining stockholders entitled to Section 7.4) of receive such rights, options or warrantswarrants plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the denominator shall be the number of shares of Common Stock outstanding on the record date for determining stockholders entitled to receive such rights, options or warrants plus the number of shares which the aggregate offering price of the total number of shares of Common Shares outstanding on Stock so offered would purchase at the current market price per share of Common Stock at such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such date. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to issued, and shall become effective as of immediately after the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or for the determination of stockholders entitled to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of receive such rights, options or warrants, as the case may be;.
(ciii) if and whenever In case the Issuer shall at any time during after the Adjustment Period the Corporation shall fix a record date for the making of a distribution hereof distribute to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) Common Stock evidences of its indebtedness or (iv) assets (including cash) securities and cash dividends not paid out of funds legally available for the payment of dividends under the laws of the Corporationjurisdiction of incorporation of the Issuer or not made in the ordinary course of business), thenbut excluding dividends or distributions referred to in Section (i) above or rights or options or warrants referred to in Section (ii) above, then in each such case, case the Conversion Price number of shares of Common Stock thereafter purchasable upon conversion shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date number of shares of Common Stock theretofore purchasable upon conversion by a fraction, of which the numerator shall be then current market price per share of Common Stock (as defined in Section (v) below) on the date of such distribution, and of which the denominator shall be then current market price per share of Common Stock, less then fair value (as reasonably determined in good faith by the Board of Directors of the Issuer, whose reasonable determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights or securities or warrants applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to the record date for the determination o shareholders entitled to receive such distribution.
(iv) In case the Issuer shall any time after the date hereof sell and issue shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock (excluding (A) shares, rights, options, warrants or convertible or exchangeable securities issued in any of the transactions described in Sections (i) through (iii) above and (B) 42,650 options contemplated to be issued to G & S Technologies, Inc. as described in Schedule 3.8 the Purchase Agreement), a price per share of Common Stock (as determined in accordance with Section (v) below) that is lower than the higher of (A) the current market value per share of Common Stock (as determined in accordance with Section (v) below) on the date of such sale or issuance or on the date of the agreement for such sale or issuance (whichever is less) and (B) the Conversion Price, then in each case the number of shares of Common Stock thereafter purchasable upon conversion shall be increased by multiplying the number of shares of Common Stock theretofore purchasable upon the conversion by a fraction, the numerator of which shall be (I) the total number of shares of Common Shares Stock issuable in connection with such sale and issuance, and the denominator of which shall be (II) the number of shares of Common Stock that the aggregate consideration received (determined as provided below) for such sale or issuance would purchase at the higher of the prices referred to in (A) and (B) above. Such adjustment shall be made successively whenever such an issuance is made. For the purposes of such adjustments, the shares of Common Stock that the holder of such rights, options, warrants, or convertible or exchangeable securities shall be entitled to subscribe for or purchase shall be deemed to be issued and outstanding on as of the date of such record date multiplied sale and issuance and the consideration received by the Twenty Day Weighted Average Trading Price Issuer therefor shall be deemed to be the consideration received by the Issuer, plus the consideration or premiums stated in such rights, options, warrants or convertible or exchangeable securities to be paid for the shares of Common Stock covered thereby. In case the issuer shall sell and issue shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase Common Stock, for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the "price per share of Common Stock" and the "consideration received by the Issuer" for purposes of the first sentence of this Section (iv), the Board of Directors of the Issuer shall determine, on such record datea reasonable basis and in good faith, less the fair value of such property. In case the Issuer shall sell and issue rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the consideration received by the Issuer for purposes of the first sentence of this Section (iv), the Board of Directors shall determine, on a reasonable basis and in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit.
(v) For the purpose of any computation under sections (ii) through (iv) above, the current market price per share of Common Stock at any date shall be the average of the current market value (of Common Stock for the 20 consecutive trading days commencing 30 trading days prior to such date; provided, that, if the Common Stock is not then publicly traded, the current market price per share shall be the average of the market value of the Common Stock of the last 20 consecutive trading days prior to the last day of trading; provided, however that such date is not earlier than 180 days prior to the date as of which such price is required to be determined, and otherwise such price shall be determined by an opinion of a nationally recognized independent investment bank selected by the Directorsmutual agreement of the Issuer and the Holder. In the case of rights, subject to Section 7.4 options, warrants or convertible or exchangeable securities, the price per share of Common Stock shall be determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the sale and issuance of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration payable to the Issuer upon exercise or conversion or exchange thereof, by (y) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities.
(vi) No adjustment in the number of shares of Common Stock convertible hereunder shall be required unless such adjustment would result in an increase or decrease of at least one percent (1%) of the number of shares of Common Stock for which shares of the Securities are convertible; provided, that any adjustments which by reason of this Section (vi) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. Whenever an adjustment shall be made pursuant to (i) through (v) above, the Conversion Price shall be adjusted accordingly. All calculations shall be made to the nearest one-thousandth of a share.
(vii) No adjustment in the number of shares of Common Stock received upon conversion need be made under Sections (ii) through (iv) above if the Issuer issues or distributes to the Holder of the Securities shares of Common Stock, the shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in those Sections which such Holder would have been entitled to receive had this conversion not occurred prior to the happening of such event or the record date with respect thereto.
(viii) For the purpose of this Section 7.1(c)8, the term "shares of Common Stock" shall mean (i) Common Stock of the Issuer, or (ii) any other class of stock resulting from successive changes or reclassifications of such shares consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. In the event that at any time, as a result of an adjustment made pursuant to clause (ii) above, the Holders shall become entitled to receive any securities of the Issuer other than shares of Common Stock, thereafter the number of such other shares so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in Section (i) through (iv) above, and the other provisions of this Section 8 shall apply on like terms to any such other securities.
(ix) Except as provided in Sections (i) through (iii) above, no adjustment in respect of any dividends shall be made during the term of the Securities or upon the conversion of the Securities.
(x) Upon the expiration of any rights, options, warrants or conversion or exchange privileges with respect to which an adjustment shall have been made pursuant to Section (ii) or (iv) above, if any rights, options, warrants or conversion or exchange privileges thereof have not been exercised, the number of shares of Common Stock purchasable upon conversion will, upon such expiration, be readjusted and will thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not been required, as the case may be, in such kind and number ) as it would have received if it had been a holder (i) the only shares of Common Shares on Stock so issued were the applicable record date shares of Common Stock, if any, actually issued or effective datesold upon the exercise of such rights, options or warrants or conversion or exchange rights and (ii) such shares of Common Stock, if any, were issued or sold for the consideration actually received by the Issuer upon such exercise, conversion or exchange plus the aggregate consideration, if any actually received by the Issuer for the issuance, sale or grant of all such rights, options or warrants, whether or not exercised. Whenever the number of shares purchasable upon conversion shall be adjusted as the case may be, required by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if8, the Issuer shall forthwith file in the opinion custody of its Secretary or an Assistant Secretary at its principal office and with its stock transfer agent, if any, an officers' certificate showing the adjusted number of shares determined as herein provided, setting forth in reasonable detail the facts requiring such adjustment and the manner of computing such adjustment. Each such officers' certificate shall be signed by the chairman, president or chief financial officer of the Directors, Issuer and by the provisions of this Section 7.1 are not strictly applicable, secretary or if strictly applicable would not fairly protect the rights any assistant secretary of the Holder in accordance with the intent and purposes hereof, the Directors Issuer. Each such officers' certificate shall make be made available at all reasonable times for inspection by any adjustment in such provisions for the benefit holder of shares of the Holder as Securities and the Directors deem appropriateIssuer shall, forthwith after each such adjustment, mail a copy, by first-class mail, of such certificate to the each of the Holders.
Appears in 1 contract
Sources: 12% Senior Subordinated Convertible Note (T F Purifiner Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Subordinate Voting Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Subordinate Voting Shares into a smaller number of such shares; , or
(iii) issue Subordinate Voting Shares or securities exchangeable or convertible into Subordinate Voting Shares to the holders of all or substantially all of the outstanding Subordinate Voting Shares by way of a dividend or distribution (other than the issue of Subordinate Voting Shares to holders of Subordinate Voting Shares who have elected to receive dividends or distributions in the form of Subordinate Voting Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Subordinate Voting Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Subordinate Voting Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Subordinate Voting Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Subordinate Voting Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.3(a) shall occur;. Any such issue of Subordinate Voting Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Subordinate Voting Shares under subsections (b) and (c) of this Section 6.3.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Subordinate Voting Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Subordinate Voting Shares (or securities convertible or exchangeable into Common Subordinate Voting Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Subordinate Voting Shares outstanding on such record date multiplied plus a number of Subordinate Voting Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Subordinate Voting Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Subordinate Voting Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
plus the total number of additional Subordinate Voting Shares offered for subscription or purchase (i) Common Shares owned by or held for into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Subordinate Voting Shares (or securities convertible into Subordinate Voting Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(dc) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Subordinate Voting Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.3(a) or a consolidation, amalgamation, arrangement or arrangement, share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Subordinate Voting Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned Subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Subordinate Voting Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Subordinate Voting Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Subordinate Voting Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 6.3(l). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 6.3(c), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.3(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 14. Any indenture entered into between the Corporation, any successor to the Corporation or such kind purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.3(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.3(c) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this Section 6.3(c) applies shall be given in accordance with Section 6.7.
(d) If the Corporation shall make a distribution to all or substantially all of the holders of Subordinate Voting Shares of shares in the capital of the Corporation, other than Subordinate Voting Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.3(b) and (ii) any dividend or distribution paid exclusively in cash (the “Distributed Securities”), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Subordinate Voting Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Subordinate Voting Share on such record date and of which the numerator shall be the Current Market Price per Subordinate Voting Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the CSE (or such other recognized stock exchange on which the Subordinate Voting Shares are listed for trading) and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Subordinate Voting Share (determined on the basis of the number of Subordinate Voting Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as it so determined) of the portion of the Distributed Securities so distributed applicable to one Subordinate Voting Share is equal to or greater than the Current Market Price per Subordinate Voting Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received if had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (d) of Section 6.3 by reference to the actual or when issued trading market for any securities, it had been a holder of Common Shares on must in doing so consider the applicable record date or effective date, as prices in such market over the case may be, by virtue same period used in computing the Current Market Price of the Principal Sum having then been converted into Common Subordinate Voting Shares. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Subordinate Voting Shares at consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Subordinate Voting Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the CSE (or effective date, such other exchange on which the Subordinate Voting Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Subordinate Voting Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Subordinate Voting Share and the numerator of which shall be the weighted average trading price of one Subordinate Voting Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(fe) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Subordinate Voting Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Subordinate Voting Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent and shall apply Trustee) payable to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in shareholders based on the acceptance (up to any adjustment under the provisions of this Section 7.1.
(g) if, maximum specified in the opinion terms of the Directors, the provisions issuer bid) of this Section 7.1 are all Subordinate Voting Shares validly tendered and not strictly applicable, or if strictly applicable would not fairly protect the rights withdrawn as of the Holder in accordance with Expiration Time (the intent Subordinate Voting Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Subordinate Voting Shares”) and purposes hereof, (B) the Directors shall make any adjustment in such provisions for the benefit product of the Holder as number of Subordinate Voting Shares outstanding (less any Purchased Subordinate Voting Shares and excluding any Subordinate Voting Shares held in the Directors deem appropriate.treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Subordinate Voting Shares outstanding (including Purchased Subordinate Voting Shares but excluding any Subordinate Voting Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Subordinate Voting Shares pursuant to any such issuer bid, but
Appears in 1 contract
Sources: Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares, provided that the Conversion Price so adjusted is not less than $0.23, which represents the volume weighted average trading price of the Common Shares on the Toronto Stock Exchange for the five consecutive trading days prior to and including June 26, 2012, the date the Offering was announced, less the maximum permitted discount pursuant to the policies of the Toronto Stock Exchange. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or any payment in connection therewith in accordance with Section 2.4, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the five day VWAP for the Common Shares immediately prior to the record date and of which the numerator shall be the five day VWAP for the Common Shares for the first five trading days that occur immediately following such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the Toronto Stock Exchange, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers' Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (f) of Section 6.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.1.
(g) if, in the opinion of the Directors6.5(f), the provisions of this Section 7.1 are not strictly applicable, term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.a take-over bid under Applicable Securities Legislation by a Subsidiary
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall will be subject to adjustment from time to time without duplication in the events and in the manner provided as follows:.
(a) if If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Maturity Date, the Corporation shallCorporation:
(i) subdivide, redivide or change subdivides its outstanding Common Shares into a greater number of such sharesCommon Shares; or
(ii) reducereduces, combine combines or consolidate consolidates its outstanding Common Shares into a smaller number of Common Shares; or
(iii) issues Common Shares or securities convertible into or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares as a dividend, distribution or otherwise (other than an issue of Common Shares or securities convertible into or exchangeable for Common Shares to holders of Common Shares pursuant to a right granted to such sharesholders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course); (any of such events in clauses (i), (ii) and (iii), being called a “Common Share Reorganization”), then the Conversion Price in effect will be adjusted, effective on the effective date or record date for the happening of such subdivision, redivision, change, reduction, combination or consolidationa Common Share Reorganization, as the case may be, shall in at which the case holders of Common Shares are determined for the purpose of the events referred to in (i) aboveCommon Share Reorganization, be decreased in proportion to so that it shall equal the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case price determined by multiplying the Conversion Price in effect on immediately prior to such effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the total number of Common Shares outstanding immediately prior on such effective date or record date before giving effect to such date Common Share Reorganization and the denominator shall of which will be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;).
(b) if If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Maturity Date, the Corporation shall fix fixes a record date for the issuance issue of rights, options or warrants to the holders of all or substantially all of the holders of its outstanding Common Shares entitling themunder which such holders are entitled, for during a period expiring not more than 45 days after the record date for such record dateissue (the “Rights Period”), to subscribe for or purchase Common Shares (or securities exchangeable for or convertible or exchangeable into Common Shares) Shares at a price per share to the holder (or having a conversion or at an exchange price or conversion price per shareshare during the Rights Period to the holder in the case of securities exchangeable for or convertible into Common Shares) which is less than 95% of the Twenty Day Weighted Average Trading Current Market Price for the Common Shares on such record datedate (any of such events being called a “Rights Offering”), then the Conversion Price shall will be adjusted effective immediately after such record date the end of the Rights Period so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date immediately prior to the end of the Rights Period by a fraction, :
(i) the numerator of which will be the numerator shall be aggregate of:
(A) the total number of Common Shares outstanding on such as of the record date multiplied by for the Twenty Day Weighted Average Trading Price on such record datecommencement of the Rights Offering, less the fair market value and
(as B) a number determined by dividing (1) either (x) the Directors, subject to Section 7.4) product of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on issued or subscribed for during the Rights Period upon the exercise of the rights, warrants or options under the Rights Offering and the price at which such Common Shares are offered for such issue or subscription, or, as the case may be, or (y) the product of the exchange price or conversion price of such securities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (2) the Current Market Price of the Common Shares as of the record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account commencement of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;Rights Offering, and
(ii) such adjustment shall the denominator of which will be made successively whenever such a the number of Common Shares outstanding, or the number of Common Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Common Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering.
(c) Any Debentureholder who has exercised the right to convert to Common Shares in accordance with Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the last day of the Rights Period for the Rights Offering will, in addition to the Common Shares to which that holder would otherwise be entitled upon such conversion, be entitled to that number of additional Common Shares equal to the result obtained when the difference, if any, between the Conversion Price in effect immediately prior to the end of such Rights Offering and the Conversion Price as adjusted for such Rights Offering pursuant to this section 6.1(c) is fixed;
(iii) multiplied by the number of Common Shares received upon the conversion of the Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price as adjusted for such Rights Offering pursuant to this section 6.1(c); provided that the provisions of section 4.3 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this section 6.1(c). Such additional Common Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised prior to on or before the expiration expiry thereof, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon on the number of Common Shares (or the securities convertible into or exchangeable into for Common Shares) actually issued upon delivered on the exercise of such rights, options or warrants, as the case may be;.
(cd) if If and whenever at any time during after the Adjustment Period date hereof and prior to the Maturity Date, the Corporation shall fix fixes a record date for the making of a issue or the distribution to the holders of all or substantially all of the holders of its outstanding Common Shares of (i) shares securities of any classthe Corporation, whether including rights, options or warrants to acquire securities of the Corporation or any other corporation (of its property or assets and including stock dividends), cash and evidences of Indebtedness; or (ii) rightsany property or other assets, options or warrants (excluding those referred to in Section 7.1(b)); (iii) including cash and evidences of its indebtedness Indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Share Reorganization, a Rights Offering or a distribution contemplated by section 6.1(b) (iv) assets (including cash) any of the Corporationsuch non-excluded events being called a “Special Distribution”), then, in each such case, then the Conversion Price shall will be adjusted effective immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which will be:
(A) the numerator shall be product of the total number of Common Shares outstanding on such record date multiplied by and the Twenty Day Weighted Average Trading Current Market Price of the Common Shares on such record date (where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding such record date, less ); less
(B) the fair market value (in US Dollars), as determined by action by the DirectorsBoard of Directors (whose determination, subject to Section 7.4 the consent of a Recognized Stock Exchange, will be conclusive), to the holders of Common Shares of such shares, rights, options, warrants, evidences of indebtedness securities or property or other assets so distributed, and issued or distributed in the Special Distribution; and
(ii) the denominator of which the denominator shall will be the total product of the number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading and the Current Market Price provided that:
(i) of the Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any on such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to where applicable, converted into US Dollars using the noon rate of exchange posted by the Bank of Canada on the Business Day immediately preceding such record date). To the extent that such distribution any Special Distribution is not so made, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or effective immediately to the Conversion Price which would then be in effect based upon such shares securities or rights, options property or warrants or evidences of indebtedness or other assets as actually distributed, as the case may be;.
(de) if If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Maturity Date, there is a reclassification of the Common Shares at any time outstanding or a change of the Common Shares into other shares or into other securities or other capital reorganization of the Corporation (other than as described in Section 7.1(a) a Common Share Reorganization), or a consolidation, amalgamation, arrangement amalgamation or merger of of, or an arrangement involving, the Corporation with or into any other body corporate, trust, partnership corporation or other entityentity (other than a vertical amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to the Business Corporations Act (Ontario)), or a sale or conveyance transfer of the property and undertaking or assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership another corporation or other entityentity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events being called a “Capital Reorganization”), any Holder who exercises the Holder shall, upon right to convert Debentures into Common Shares pursuant to Debentures then held after the exercise effective date of the Conversion Right, such Capital Reorganization will be entitled to receive receive, and shall accept, will accept for the same aggregate consideration in lieu of the number of shares then sought Common Shares to be acquired by itwhich such Holder was previously entitled upon such conversion, the aggregate number of Common Shares or shares, other securities or other property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder holder would have been entitled to receive on as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, Capital Reorganization if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to which such holder was previously entitled upon conversion provided, however, that the consideration into which the Debentures will be convertible will be limited to prescribed securities (as defined by Regulation 6208 to the Income Tax Act (Canada)) of the Corporation as specified by the Board of Directors of the Corporation. The Corporation will take all steps necessary to ensure that, on a Capital Reorganization, the Debentureholders will receive the aggregate number of shares, other securities or other property to which they are entitled as a result of the Capital Reorganization and that such shares or securities will be prescribed securities as defined in Regulation 6208 of the Income Tax Act (Canada), which includes shares or securities not redeemable by the holder thereof within 5 years from the issue date of the Debentures. Appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Article 6 with respect to the rights and interests thereafter of Debentureholders to the end that the provisions set forth in this Article 6 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the Corporation or any such successor, purchasing or transferee corporation or entity, as the case may be, will enter into an indenture supplemental hereto approved by action of the Board of Directors and by the Indenture Trustee, which will set forth an appropriate adjustment to give effect to this section 6.1(e), in which event such adjustment will for all purposes be conclusively deemed to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifappropriate adjustment, subject to the prior approval written consent of applicable stock exchanges a Recognized Stock Exchange.
(f) If the Holder receives the purchase price provided for in any rights, options or warrants (the “Rights Offering Price”) referred to in Section 7.1(bsections 6.1(b) or 6.1(d) is decreased, the share rights, options, warrants, evidences of indebtedness Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under sections 6.1(b) or assets referred to in Section 7.1(c6.1(d), as the case may be, in with respect to such kind and number as it would have received if it rights, options or warrants had been a holder of Common Shares made on the applicable record date or effective date, as the case may be, by virtue basis of the Principal Sum having then been converted into Common Shares at Rights Offering Price as so decreased, provided that the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions terms of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.section 6.1
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time as follows if any of the events listed below occur prior to time as follows:
(a) if and whenever at the conversion of any time during Series B Preferred Shares being converted pursuant to Section 4.1. In case the Adjustment Period, the Corporation shall:
Company shall (i) subdividesubject to Section 3.4(c) above pay a dividend or make a distribution on its Common Shares in Common Shares, redivide (ii) subdivide or change reclassify its outstanding Common Shares into a greater number of such shares; or
, or (iiiii) reduce, combine consolidate or consolidate reclassify its outstanding Common Shares into a smaller number of such shares; , the Conversion Price in effect immediately prior to such event shall be adjusted so that the holder of the Series B Preferred Shares thereafter converted shall be entitled to receive the number of A Common Shares of the Company which it would have owned or have been entitled to receive after the happening of such event had the Series B Preferred Shares been converted immediately prior to the happening of such event. An adjustment made pursuant to this paragraph shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of subdivision, combination or reclassification. If any dividend or distribution is not paid or made, the events referred to Conversion Price then in effect shall be appropriately readjusted. In case the Company shall (i) aboveissue Common Shares, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of issue rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares, or (iii) issue or sell other rights for Common Shares (or securities (including issuances of Series B Preferred Shares, other than in Exempt Issuances) convertible or exchangeable into Common SharesShares (any of the issuances in clauses (i), (ii) at or (iii), hereinafter "New Securities"), for a price consideration per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading then effective Conversion Price on the date the Company issues or sells such record dateNew Securities, the Conversion Price shall be adjusted immediately after then in each such record date so that it shall equal the amount determined by multiplying case the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised immediately prior to the expiration thereof, the Conversion Price issuance of such New Securities shall be readjusted reduced, concurrently with the issue of such New Securities, to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares price (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed calculated to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions one-hundredth of this Section 7.1.
(ga cent) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder determined in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.following formula:
Appears in 1 contract
Sources: Series B Convertible Preferred Shares Purchase Agreement (Xinhua Finance Media LTD)
Adjustment of Conversion Price. The conversion price (the "Conversion Price in effect at any date Price") initially shall be subject to adjustment that price set forth in paragraph 8 of the form of Note attached hereto as Exhibit A, but shall be adjusted from time to time by the Company, without duplication, as follows:
(a) if and whenever at any time during In case the Adjustment Period, the Corporation shall:
Company shall (i) subdividepay a dividend or other distribution in shares of Common Stock to all holders of Common Stock, redivide or change (ii) subdivide its outstanding Common Shares Stock into a greater number of such shares; or
, (iiiii) reduce, combine or consolidate its outstanding Common Shares Stock into a smaller number of such shares; shares or (iv) reclassify its outstanding Common Stock, the Conversion Price in effect on immediately prior thereto shall be adjusted so that the effective date Holder of any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Capital Stock which it would have owned or have been entitled to receive had such Note been converted immediately prior to the happening of such subdivision, redivision, change, reduction, combination or consolidation, as event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the case may be, shall record date in the case of a dividend or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reductionsubdivision, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such datereclassification. Such adjustment shall be made successively whenever If any event referred to dividend or distribution described in this Section 7.1(a12.06(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options is declared but not so paid or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record datemade, the Conversion Price shall again be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed declared.
(b) In case the Company shall issue to all holders of its Common Stock, rights, warrants or options entitling such holders (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to the Conversion Price which would then be in effect based upon the number subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) actually issued upon at a price per share less than the exercise of such rights, options or warrants, as Market Price at the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making determination of a distribution stockholders entitled to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) receive such rights, options warrants or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such caseoptions, the Conversion Price in effect immediately prior thereto shall be adjusted immediately after such record date so that it the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Shares Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities offered by such rights, warrants or options) would purchase at such Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding on such record date multiplied plus the number of additional shares of Common Stock offered by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness warrants or assets so distributed, and of options (or into which the denominator shall be the total number of Common Shares outstanding on such record date multiplied convertible securities so offered by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by rights, warrants or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such options are convertible). Such adjustment shall be made successively whenever any such a rights, warrants or options are issued, and shall become effective immediately after such record date is fixed;date. If at the end of the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock) or evidences of its indebtedness, other securities or other assets, or shall distribute to all holders of its Common Stock, rights, warrants or options to subscribe for or purchase any of its securities (excluding (i) rights, options and warrants referred to in Section 12.06(b) above; (ii) those dividends, distributions, subdivisions and combinations referred to in Section 12.06(a) above; and (iii) dividends and distributions paid in cash), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the extent date of such distribution by a fraction, the numerator of which shall be the Market Price on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value) of the portion of the Capital Stock or evidences of indebtedness, securities or assets so distributed or of such rights, warrants or options, in each case as applicable, to one share of Common Stock, and the denominator of which shall be the Market Price on such record date; provided that no adjustment to the Conversion Price or the ability of a Holder of a Note to convert will be made pursuant to this Section 12.06(c) if the Company provides that Holders of Notes will participate in such cash dividend or distribution on an as-converted basis without conversion and provided further, that if the numerator of the foregoing fraction is less than $1.00 (including a negative amount), then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the Common Stock issuable upon such conversion, the distribution such Holder would have received had such Holder converted its Note immediately prior to the record date for such distribution. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed declared.
(d) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended as of the expiration thereof) shall require the payment to common stockholders of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that as of the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect based upon if such shares tender or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;exchange offer had not been made.
(de) if and whenever at any time during In case the Adjustment PeriodCompany shall declare a cash dividend or distribution to all or substantially all of the holders of Common Stock, there is the Conversion Price shall be decreased so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for such dividend or distribution by a reclassification fraction,
(i) the numerator of which shall be the average of the Closing Prices of the Common Shares Stock price for the three consecutive trading days ending on the date immediately preceding the Ex-Dividend Date for such dividend or distribution (the "Pre-Dividend Sale Price"), minus the full amount of such dividend or distribution to the extent payable in cash applicable to one share of Common Stock, and
(ii) the denominator of which shall be the Pre-Dividend Sale Price, such adjustment to become effective immediately after the record date for such dividend or distribution; provided that no adjustment to the Conversion Price or the ability of a capital reorganization Holder of a Note to convert will be made pursuant to this Section 12.06(e) if the Company provides that Holders of Notes will participate in such cash dividend or distribution on an as-converted basis without conversion and provided further, that if the numerator of the Corporation other foregoing fraction is less than as described in Section 7.1(a) or $1.00 (including a consolidationnegative amount), amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, then in lieu of the number of shares then sought foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to be acquired by itreceive upon conversion, in addition to the Common Stock issuable upon such conversion, the number amount of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from cash such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled received had such Holder converted its Note immediately prior to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date for such dividend or the effective date thereof, as the case may bedistribution. If such dividend or distribution is not so paid or made, the Holder had been the registered holder of the number of Common Shares sought Conversion Price shall again be adjusted to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall Price that would then be made to the Conversion Price;
(e) in effect if such dividend or distribution had not been declared. In any case in which this Section 7.1(b) or 7.1(c) 12.06 shall require that an adjustment be made immediately following a record date established for purposes of Section 12.06, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 12.06) issuing to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of any Note converted after such record date the shares of Common Shares Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the applicable record date or effective date, as the case may be, by virtue basis of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shallprior to adjustment; and, in lieu of the case shares the issuance of adjustments which is so deferred, the Company shall issue or cause its transfer agents to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues issue due bills or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion appropriate evidence of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in right to receive such provisions for the benefit of the Holder as the Directors deem appropriateshares.
Appears in 1 contract
Sources: Indenture (Watermark Realty Inc)
Adjustment of Conversion Price. The Each Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, the Corporation Maturity Date Borrower shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or;
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend, each Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a stock dividend, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a1.1(10)(a) shall occur;. Any such issue of Common Shares by way of a stock dividend shall be deemed to have been made on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 1.1(10).
(b) if If and whenever at any time during prior to the Adjustment Period, the Corporation Maturity Date Borrower shall fix a record date for the issuance of rights, options rights or warrants to all or substantially all the any holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the each Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rights, options rights or warrants are not so issued or any such rights or warrants are not exercised prior to the expiration thereof, the each Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be have been in effect if such record date had not been fixed or to the Conversion Price which would then be have been in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period the Corporation Maturity Date Borrower shall fix a record date for the making of a distribution to all or substantially all the any holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Common Shares or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(b)); subscribe for or purchase Common Shares or securities convertible into Common Shares) or (iii) evidences of its indebtedness or (iv) cash or other assets (including cash) of the Corporation, then, in each such case, the each Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the DirectorsBoard of Directors with the approval of Requisite Convertible Term Loan Lenders, subject to Section 7.4 which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of or indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the each Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be have been in effect if such record date had not been fixed or to the Conversion Price which would then be have been in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) if and whenever For the purpose of any computation under subsections (b) or (c) of this Section 1.1(10), the current market price per Common Share at any time date shall be the weighted average price per share for Common Shares for the twenty (20) consecutive Trading Days ending five (5) Trading Days before such date on the Exchange (the "Current Market Price"). The weighted average price shall be determined by dividing the aggregate sale price of all Common Shares sold on such Exchange during the Adjustment Period, there is said twenty (20) consecutive Trading Days by the total number of Common Shares so sold.
(e) In the case of any reclassification or change (other than a reclassification change resulting only from consolidation or subdivision) of the Common Shares or a capital reorganization in case of the Corporation other than as described in Section 7.1(a) or a consolidation, any amalgamation, arrangement consolidation or merger of the Corporation Borrower with or into any other body corporate, trust, partnership or other entitycorporation, or a in the case of any sale or conveyance of the property properties and assets of the Corporation Borrower, as an entirety or substantially as as, an entirety to any other body corporatecorporation, trust, partnership or other entity, each Conversion Price and the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be madeShares, as the case may be, shall be adjusted so that the Holder would have been entitled to receive on any Conversion Amount shall, after such reclassification, capital reorganizationchange, amalgamation, consolidation, amalgamationmerger or sale, arrangement be convertible into the number of shares of Borrower, or mergersuch continuing, sale successor or conveyance, if, on the record date or the effective date thereofpurchaser corporation, as the case may be, which the Holder applicable Convertible Term Loan Lender would have been entitled to receive as a result of such reclassification, change, amalgamation, consolidation, merger or sale if on the effective date thereof it had been the registered holder of the number of Common Shares sought into which the Conversion Amount was convertible prior to the effective date of such reclassification, change, amalgamation, consolidation, merger or sale. No such reclassification, change, amalgamation, consolidation, merger or sale shall be acquired by it and carried into effect unless (i) in the opinion of the Board of Directors, all necessary steps shall have been taken to which it was ensure that the Convertible Term Loan Lenders shall thereafter be entitled to acquire upon the exercise receive such number of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) shares of Borrower, or 7.1(c) require that an adjustment be made to the Conversion Pricesuch continuing, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options successor or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)purchasing corporation, as the case may be, subject to adjustment thereafter in accordance with provisions similar, as nearly as may be, to those contained in this Section 1.1(10); and (ii) such kind shares constitute prescribed securities for the purposes of clause 212(1)(b)(vii)(E) of the ITA.
(f) In any case in which this Section 1.1(10) shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, Borrower may defer, until the occurrence of such event, issuing to the applicable Convertible Term Loan Lender converting after such record date and number as it would have received if it had been a holder before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that Borrower shall deliver to such Convertible Term Loan Lender an appropriate instrument evidencing such Convertible Term Loan Lender's right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such Convertible Term Loan Lender would, but for the provisions of this Section 1.1(10)(f), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 1.1(7).
(fg) the The adjustments provided for in this Section 7.1 1.1(10) are cumulative, and shall, in the case of adjustments to the Conversion Price will be computed to the nearest whole cent of one-tenth of one cent, and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section; provided that, notwithstanding any other provision of this Section, no adjustment of any Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.11.1(10)(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gh) ifIn the event of any question arising with respect to the adjustments provided in this Section 1.1(10), such question shall be conclusively determined by a firm of chartered accountants appointed by Borrower and acceptable to Requisite Convertible Term Loan Lenders (who may be the auditors of Borrower); such accountants shall have access to all necessary records of Borrower and such determination shall be binding upon Borrower, Agents and Convertible Term Loan Lenders, absent manifest error. If any such determination is made, Borrower will deliver an Officers' Certificate to each Convertible Term Loan Lender describing such determination.
(i) In case Borrower shall take any action affecting the Common Shares other than action described in this Section 1.1(10), which in the opinion of the Directors, the provisions Board of this Section 7.1 are not strictly applicable, or if strictly applicable Directors would not fairly protect affect the rights of Convertible Term Loan Lenders, each Conversion Price shall be adjusted in such manner and at such time, by action of the Holder Board of Directors, subject to the prior written consent of the Exchange if necessary, as the Board of Directors in their sole discretion may determine to be equitable in the circumstances. Failure of the Board of Directors to make such an adjustment shall be conclusive evidence that the Board of Directors have determined that it is equitable to make no adjustment in the circumstances.
(j) No adjustment in a Conversion Price shall be made in respect of any event described in Section 1.1(10)(a), (b) and (c) if Convertible Term Loan Lenders are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Convertible Notes prior to the effective date or record date, as the case may be, of such event and subject to the approval of the Exchange where such approval is required pursuant to the TSX Company Manual.
(k) Any amendment or change to the Conversion A Price shall require the prior written consent of all Convertible Term A Loan Lenders, except if such amendment or change is related to an adjustment to the Conversion A Price made from time to time in accordance with Section 1.1(10).
(l) Any amendment or change to the intent Conversion B/C Price shall require the prior written consent of all Convertible Term B Loan Lenders and purposes hereofall Convertible Term C Loan Lenders, except if such amendment or change is related to an adjustment to the Directors shall make any adjustment Conversion B/C Price made from time to time in such provisions for the benefit of the Holder as the Directors deem appropriateaccordance with Section 1.1(10).
Appears in 1 contract
Sources: Credit Agreement (Sr Telecom Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time as follows:
(a) if and whenever In case the Company shall, at any time during or from time to time while any of the Adjustment PeriodNotes are outstanding, pay a dividend or make a distribution in shares of Common Stock to all holders of its outstanding shares of Common Stock, then the Corporation shallConversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction:
(i) subdividethe numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as hereinafter defined) fixed for such determination; and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution. Such reduction shall become effective immediately after the opening of business on the day following the Record Date fixed for such determination. If any dividend or distribution of the type described in this Section 2.04(a) is declared but not so paid or made, redivide the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or change distribution had not been declared.
(b) In case the Company shall, at any time or from time to time while any of the Notes are outstanding, subdivide its outstanding shares of Common Shares Stock into a greater number of shares of Common Stock, then the Conversion Price in effect at the opening of business on the day following the day upon which such shares; or
(ii) reducesubdivision becomes effective shall be proportionately reduced, and conversely, in case the Company shall, at any time or from time to time while any of the Notes are outstanding, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; shares of Common Stock, then the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective date of such subdivision, redivision, change, reduction, combination shall be proportionately increased. Such reduction or consolidationincrease, as the case may be, shall in become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall, at any time or from time to time while any of the events Notes are outstanding, issue rights or warrants (other than any rights or warrants referred to in (iSection 2.04(d)) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding shares of Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into shares of Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Sale Price on the Business Day immediately preceding the date of the announcement of such record dateissuance (treating the conversion price per share of the securities convertible into Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible security), then the Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date of announcement by a fraction, :
(i) the numerator of which the numerator shall be the number of shares of Common Stock outstanding on the close of business on the date of announcement, plus the number of shares or securities which the aggregate offering price of the total number of shares or securities so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Sale Price of the Common Shares outstanding on such record date multiplied by Stock; and
(ii) the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and denominator of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date of announcement, plus the total number of additional shares of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
Stock so offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever become effective immediately after the opening of business on the day following the date of announcement of such a record date is fixed;
(iii) to issuance. To the extent that any such rights, options shares of Common Stock (or warrants securities convertible into shares of Common Stock) are not exercised prior delivered pursuant to such rights or warrants, upon the expiration thereofor termination of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if had the adjustments made upon the issuance of such record date had rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into shares of Common Stock) actually delivered. In the event that such rights or warrants are not been fixed or so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect based upon if the number date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon Stock at less than such Sale Price, and in determining the exercise aggregate offering price of such rightsshares of Common Stock, options there shall be taken into account any consideration received for such rights or warrants, as the case may be;value of such consideration if other than cash, to be determined by the Board of Directors.
(ci) if and whenever In case the Company shall, at any time during or from time to time while any of the Adjustment Period the Corporation shall fix a record date for the making of a distribution Notes are outstanding, by dividend or otherwise, distribute to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation Common Stock (including stock dividendsany such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the Common Stock is not changed or exchanged), cash, shares of its capital stock (iiother than any dividends or distributions to which Section 2.04(a) rightsapplies), options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or other assets, including securities, but excluding (ivx) any rights or warrants referred to in Section 2.04(c), (y) dividends or distributions of stock, securities or other property or assets (including cash) in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 2.05 applies and (z) dividends and distributions paid exclusively in cash (such capital stock, evidence of its indebtedness, cash, other assets or securities being distributed hereinafter in this Section 2.04(d) called the Corporation"distributed assets"), then, in each such case, subject to Section 2.04(d)(iv), Section 2.04(d)(v), Section 2.04(d)(vi) and Section 2.04(d)(vii), the Conversion Price shall be adjusted immediately after such record date reduced so that it the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date with respect to such record date distribution by a fraction, :
(A) the numerator of which the numerator shall be the total number Current Market Price of the Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record dateStock, less the fair market value Fair Market Value (as determined by hereinafter defined) on such date of the Directors, subject to Section 7.4 portion of such shares, rights, options, warrants, evidences of indebtedness or the distributed assets so distributed, and distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Record Date) (determined as provided in Section 2.04(g)) on such date; and
(B) the denominator of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary Current Market Price. Such reduction shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) become effective immediately prior to the extent opening of business on the day following the Record Date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed declared.
(ii) If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 2.04(d) by reference to the actual or when issued trading market for any distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 2.04(g) to the extent possible, unless the Board of Directors determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the Holders.
(iii) In the event any such distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Company's Subsidiaries (a "Spin-Off"), the Fair Market Value of the securities to be distributed shall equal the average of the closing sale prices of such securities on the principal securities market on which such securities are traded for the five consecutive Trading Days commencing on and including the sixth day of trading of those securities after the effectiveness of the Spin-Off, and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten initial public offering of the securities in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities distributed in the Spin-Off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Sale Price for the Common Stock on the same Trading Day.
(iv) Rights or warrants distributed by the Company to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 2.04(d) (and no adjustment to the Conversion Price under this Section 2.04(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which would then be in effect based upon such shares right or rightswarrant shall become exercisable to purchase different distributed assets, options or warrants or evidences of indebtedness or assets actually distributedother assets, as or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 2.04(d):
(A) in the case may be;
(d) if and whenever at of any time during the Adjustment Period, there is a reclassification of the Common Shares such rights or a capital reorganization of the Corporation other than as described in Section 7.1(a) warrants which shall all have been redeemed or a consolidation, amalgamation, arrangement or merger of the Corporation with or into repurchased without exercise by any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entityholders thereof, the Holder shall, Conversion Price shall be readjusted upon the exercise of the Conversion Right, be entitled such final redemption or repurchase to receive and shall accept, in lieu of the number of shares then sought give effect to be acquired by it, the number of Common Shares such distribution or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be madeTrigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of shares of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of shares of Common Stock as of the date of such redemption or repurchase; and
(B) in the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued.
(v) For purposes of this Section 2.04(d) and Section 2.04(a), Section 2.04(b) and Section 2.04(c), any dividend or distribution to which this Section 2.04(d) is applicable that also includes (i) shares of Common Stock, (ii) a subdivision or combination of shares of Common Stock to which Section 2.04(b) applies or (iii) rights or warrants to subscribe for or purchase shares of Common Stock to which Section 2.04(c) applies (or any combination thereof), shall be deemed instead to be:
(A) a dividend or distribution of the Holder would have been evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Section 2.04(a), Section 2.04(b) and Section 2.04(c) apply, respectively (and any Conversion Price reduction required by this Section 2.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(B) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Section 2.04(a), Section 2.04(b) and Section 2.04(c) with respect to such dividend or distribution shall then be made), except:
(I) the Record Date of such dividend or distribution shall be substituted as (i) "the date fixed for the determination of stockholders entitled to receive on such reclassificationdividend or other distribution," and "Record Date fixed for such determination" within the meaning of Section 2.04(a), capital reorganization(ii) "the day upon which such subdivision becomes effective" and "the day upon which such combination becomes effective" within the meaning of Section 2.04(b), consolidation, amalgamation, arrangement and (iii) as "the date fixed for the determination of stockholders entitled to receive such rights or merger, sale warrants" within the meaning of Section 2.04(c); and
(II) any shares of Common Stock included in such dividend or conveyance, if, distribution shall not be deemed "outstanding at the close of business on the record date fixed for such determination" within the meaning of Section 2.04(a) and any reduction or the effective date thereof, as the case may be, the Holder had been the registered holder of increase in the number of shares of Common Shares sought Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(vi) In the event of any distribution referred to be acquired in this Section 2.04(d) in which (1) the Fair Market Value (as determined by it and the Board of Directors) of such distribution applicable to which it was entitled to acquire upon one share of Common Stock (determined as provided above) equals or exceeds the exercise average of the Conversion Right and a contemporaneous and equal adjustment shall be made to Sale Prices of the Conversion Price;
Common Stock over the ten consecutive Trading Day period ending on the Record Date for such distribution or (e2) the average of the Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Record Date for such distribution exceeds the Fair Market Value of such distribution by less than $1.00, then, in any case each such case, in which Section 7.1(b) or 7.1(c) require that lieu of an adjustment be made to the Conversion Price, no such adjustment adequate provision shall be made if, subject so that each Holder shall have the right to the prior approval receive upon conversion of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may bea Security, in such addition to shares of Common Stock, the kind and number as it amount of such distribution such Holder would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been such Holder converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments such Security immediately prior to the Conversion Price be computed Record Date for determining the shareholders entitled to receive the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1distribution.
(gvii) ifIn the event of any distribution described in Section 2.04(d), in where the opinion Fair Market Value of such distribution per share of Common Stock (as determined by the Board of Directors) exceeds 10% of the Directors, Sale Price of a share of Common Stock on the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.Business Day
Appears in 1 contract
Sources: First Supplemental Indenture (HCC Insurance Holdings Inc/De/)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time adjusted as follows:set forth in this section.
(a) In the event that the Company shall make any distribution of its assets upon or with respect to its shares of Common Stock, as a liquidating or partial liquidating dividend, or other than as a dividend payable out of earnings or any surplus legally available for dividends under the laws of the state of incorporation of the Company, each Holder of any Convertible Note then outstanding shall, upon the exercise of his right to convert after the record date for such distribution or, in the absence of a record date, after the date of such distribution, receive, in addition to the shares subscribed for, the amount of such assets (or, at the option of the Company, a sum equal to the value thereof at the time of distribution as determined by the Board of Directors in its sole discretion) which would have been distributed to such Holder if and whenever he had exercised his right to convert immediately prior to the record date for such distribution or, in the absence of a record date, immediately prior to the date of such distribution.
(b) In case at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, redivide or change Company shall subdivide its outstanding shares of Common Shares Stock into a greater number of shares, the Current Conversion Price in effect immediately prior to such shares; or
(ii) reducesubdivision shall be proportionately reduced and conversely, combine or consolidate its in case the outstanding shares of Common Shares Stock of the Company shall be combined into a smaller number of such shares; , the Current Conversion Price in effect on immediately prior to such combination shall be proportionately increased.
(c) If any capital reorganization or reclassification of the effective date capital stock of the Company, or consolidation or merger of the Company with another corporation, or the sale, transfer or lease of all or substantially all of its assets to another corporation, shall be effected in such a way that holders of shares of Common Stock shall be entitled to receive shares, securities or assets with respect to or in exchange for shares of Common Stock, then, as a condition of such subdivisionreorganization, redivisionreclassification, changeconsolidation, reductionmerger or sale, combination the Company or consolidationsuch successor or purchasing corporation, as the case may be, shall execute an amendment to the Convertible Notes providing that the Holder of each Convertible Note then outstanding shall have the right thereafter and until the expiration of the period of convertibility to convert such Convertible Note into the kind and amount of shares, securities or assets receivable upon such reorganization, reclassification, consolidation, merger or sale by a holder of the number of shares of Common Stock into which such Convertible Note might have been converted immediately prior to such reorganization, reclassification, consolidation, merger or sale, subject to adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 6.
(d) In case the Company shall at any time after the date hereof issue or sell any shares of Common Stock, including shares held in the case Company's treasury and shares of Common Stock issued upon the events referred exercise of any options, rights or warrants to subscribe for shares of Common Stock and shares of Common Stock issued upon the direct or indirect conversion or exchange of securities for shares of Common Stock, for a consideration per share less than the then Current Conversion Price in effect immediately prior to the issuance or sale of such shares or without consideration, then forthwith upon such issuance or sale, the Conversion Price shall (until another such issuance or sale) be reduced to the price (calculated to the nearest full cent), determined by dividing (i) above, be decreased in proportion an amount equal to the sum of (A) the number of shares of Common Stock outstanding Common Shares resulting from immediately prior to such subdivisionissuance or sale multiplied by the then existing Conversion Price, redivision or change, or shall, in and (B) the case aggregate amount of the events referred to in consideration, if any, received by the Company upon such issuance or sale by, (ii) above, be increased in proportion to the total number of shares of Common Stock outstanding Common Shares resulting from immediately after such reductionissuance or sale; provided, combination or consolidation that in each case by multiplying no event shall the Conversion Price be adjusted pursuant to this computation to an amount in excess of the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and computation, except in the denominator case of a combination of outstanding shares of Common Stock, as provided by Section 6.06(b) hereof. For purposes of any computation to be made in accordance with this Section 6.06(d), the following provisions shall apply:
(i) In case of the issuance or sale (otherwise than as a dividend or other distribution on any stock of the Company) of shares of Common Stock for a consideration part or all of which shall be other than cash, the total amount of the consideration therefor other than cash shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company.
(ii) The number of shares of Common Shares Stock at any one time outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred include the aggregate number of shares issued or issuable (subject to in this Section 7.1(areadjustment upon the actual issuance thereof) shall occur;upon the exercise of options, rights, warrants and upon the conversion or exchange of convertible or exchangeable securities.
(be) if and whenever In case the Company shall at any time during after the Adjustment Perioddate hereof issue options, rights or warrants to subscribe for shares of Common Stock or issue any securities convertible into or exchangeable for shares of Common Stock, for a consideration per share less than the Corporation shall fix a record date for then Current Conversion Price in effect immediately prior to the issuance of rightssuch options, options rights or warrants to all warrants, or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (securities, or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record datewithout consideration, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which immediately prior to the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) issuance of such rightsoptions, options rights or warrants, and of which the denominator shall be the total number of Common Shares outstanding on or such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be madesecurities, as the case may be, that shall be reduced to a price determined by making a computation in accordance with the Holder would have been entitled to receive on provisions of Section 6.06(d) hereof; provided, that:
(i) If any change shall occur in the price per share provided for in any of such reclassificationoptions, capital reorganizationrights or warrants, consolidationor in the price per share at which such securities are convertible or exchangeable, amalgamationsuch options, arrangement rights or merger, sale warrants or conveyance, if, on the record date conversion or the effective date thereofexchange rights, as the case may be, shall be deemed to have expired or terminated on the Holder had been date when such price change became effective in respect of shares not therefore issued pursuant to the registered holder exercise or conversion or exchange thereof, and the Company shall be deemed to have issued upon such date new options, rights or warrants or convertible or exchangeable securities at the new price in respect of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire shares issuable upon the exercise of such options, rights or warrants or the conversion or exchange or such convertible or exchangeable securities.
(f) Upon such adjustment of the Conversion Right and a contemporaneous and equal adjustment Price pursuant to the provisions of this Section 6.06, the number of shares issuable upon conversion of this Note shall be made adjusted to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made nearest full amount by multiplying a number equal to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on immediately prior to such adjustment by the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case number of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions shares of Common Stock issuable upon exercise of this Section 7.1Note immediately prior to such adjustment and dividing the product so obtained by the adjusted Conversion Price.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: 12% Secured Convertible Note (Financialweb Com Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Subordinate Voting Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Subordinate Voting Shares into a smaller number of such shares; , or
(iii) issue Subordinate Voting Shares to the holders of all or substantially all of the outstanding Subordinate Voting Shares by way of a dividend or distribution (other than the issue of Subordinate Voting Shares to holders of Subordinate Voting Shares who have elected to receive dividends or distributions in the form of Subordinate Voting Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Subordinate Voting Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Subordinate Voting Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Subordinate Voting Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Subordinate Voting Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 6.5(a) shall occur;. Any such issue of Subordinate Voting Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Subordinate Voting Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Subordinate Voting Shares, the Conversion Price shall be adjusted by subtracting the difference between (i) the 20 consecutive trading day VWAP of the Subordinate Voting Shares immediately prior to the Subordinate Voting Shares trading on an “ex- distribution” basis; and (ii) the 20 consecutive trading day VWAP of the Subordinate Voting Shares immediately after the Subordinate Voting Shares have commenced trading on an “ex-distribution” basis. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Subordinate Voting Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Subordinate Voting Shares (or securities convertible or exchangeable into Common Subordinate Voting Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Subordinate Voting Shares outstanding on such record date multiplied plus a number of Subordinate Voting Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Subordinate Voting Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Subordinate Voting Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
plus the total number of additional Subordinate Voting Shares offered for subscription or purchase (i) Common Shares owned by or held for into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Subordinate Voting Shares (or securities convertible into Subordinate Voting Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Subordinate Voting Shares or a capital reorganization of the Corporation other than as described in Section 7.1(asubsection 6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Subordinate Voting Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Subordinate Voting Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Subordinate Voting Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Subordinate Voting Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to subsection 6.5(m). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this subsection 6.5(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this subsection 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or effective date, such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as the case nearly equivalent as may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) be practicable to the adjustments provided for in this Section 7.1 are cumulative, subsection 6.5(d) and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and which shall apply to successive subdivisionsreclassifications, redivisionscapital reorganizations, reductionsamalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, consolidationssales or conveyances. For greater certainty, distributionsnothing in this subsection 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Offer, issues or other events resulting and notice of any transaction to which this subsection 6.5(d) applies shall be given in accordance with Section 6.10. The Corporation shall not become a party to any adjustment under the provisions of Merger Event unless its terms are consistent with this Section 7.1subsection 6.5(d).
(ge) ifSubject to approval from the TSX (or such other exchange on which the Subordinate Voting Shares are then listed) as may be required, if the Corporation shall make a distribution to all or substantially all of the holders of Subordinate Voting Shares of shares in the opinion capital of the DirectorsCorporation, the provisions of this Section 7.1 are not strictly applicableother than Subordinate Voting Shares, or if strictly applicable would not fairly protect the rights evidences of indebtedness or other assets of the Holder in accordance with the intent and purposes hereofCorporation, the Directors shall make including securities (but excluding (i) any issuance of rights or warrants for which an adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.was made pursuant to subsection 6.5(c), and
Appears in 1 contract
Sources: Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 6.5(m). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 6.5(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. The Corporation shall not become a party to any Merger Event unless its terms are consistent with this Section 6.5(d).
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c), and (ii) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation at its option chooses to distribute such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the five-day VWAP immediately prior to the ex- distribution date and of which the numerator shall be the five-day VWAP for the first five trading days that occur immediately post the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the ex- distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex- dividend trading commences for such distribution on the CSE (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of
(i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this Section 7.16.5(f) to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this Section 6.5(f). For purposes of this Section 6.5(d), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(g) if, In any case in the opinion of the Directorswhich this Section 6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the provisions Corporation may defer, until the occurrence of this Section 7.1 are not strictly applicablesuch event, or if strictly applicable would not fairly protect issuing to the rights holder of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.Debenture converted after s
Appears in 1 contract
Sources: Convertible Debenture Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be Upon Issuance of Additional Shares ----------------------------------------------------------------- of Common Stock. ---------------
(A) Except as to an issuance of Additional Shares of Common Stock that is subject to adjustment from time to time as follows:
(athe provisions of Subsection 4(d)(iv)(B) if and whenever below, in the event the Corporation shall, at any time during after the Adjustment PeriodOriginal Issue Date with respect to a series of Series Preferred Stock, issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4(d)(iii), but excluding shares issued as a dividend or distribution as provided in Subsection 4(f) or upon a stock split or combination as provided in Subsection 4(e)), without consideration or for a consideration per share less than the applicable Conversion Price for such series of Series Preferred Stock in effect on the date of and immediately prior to such issue, then and in such event, such Conversion Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent) determined by multiplying such Conversion Price by a fraction, (X) the numerator of which shall be (1) the number of shares of Common Stock outstanding immediately prior to such issue plus (2) the number of shares of Common Stock which the aggregate consideration received by the Corporation for the total number of Additional Shares of Common Stock so issued would purchase at such Conversion Price; and (Y) the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of such Additional Shares of Common Stock so issued; PROVIDED THAT, for the purpose of this Subsection 4(d)(iv)(A), (i) all shares of Common Stock issuable upon exercise or conversion of Options or Convertible Securities outstanding immediately prior to such issue shall be deemed to be outstanding, and (ii) the number of shares of Common Stock deemed issuable upon exercise or conversion of such outstanding Options and Convertible Securities shall not give effect to any adjustments to the conversion price or conversion rate of such Options or Convertible Securities resulting from the issuance of Additional Shares of Common Stock that is the subject of this calculation.
(B) In the event the Corporation shall:
, at any time within 12 months following the Original Issue Date with respect to the Series E Preferred Stock, issue Additional Shares of Common Stock (iincluding Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4(d)(iii), but excluding shares issued as a dividend or distribution as provided in Subsection 4(f) subdivideor as a stock split or combination as provided in Subsection 4(e)), redivide without consideration or change its outstanding Common Shares into for a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; consideration per share less than the Series E Conversion Price in effect on the effective 94 date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding and immediately prior to such date issue, then and in such event, the denominator Series E Conversion Price shall be reduced, concurrently with such issuance, to the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, consideration per share received by the Corporation shall fix a record date for the issuance of rights, options or warrants the Additional Shares of Common Stock (determined pursuant to all or substantially all Section 4(d)(v)).
(C) Notwithstanding the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record dateforegoing, the applicable Conversion Price shall not be adjusted immediately after so reduced at such record date so that it shall equal time if the amount determined by multiplying the Conversion Price in effect on of such record date by a fractionreduction would be an amount less than $.01, of which the numerator but any such amount shall be carried forward and reduction with respect thereto made at the total number time of Common Shares outstanding on and together with any subsequent reduction which, together with such record date multiplied by amount and any other amount or amounts so carried forward, shall aggregate $.01 or more.
(D) Notwithstanding the Twenty Day Weighted Average Trading Price on such record dateother provisions of this Subsection 4(d)(iv), less in the fair market value event the Corporation makes a Series D Dilutive Issuance (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereofdefined below), the Conversion Price shall be readjusted adjustment to the Conversion Price which would then of shares of Series D Preferred Stock provided for in this Subsection 4(d)(iv) as a result of such Series D Dilutive Issuance shall not be made with respect to shares of Series D Preferred Stock held by a person or entity who was given the opportunity to purchase its Pro Rata Portion (as defined below) of such Series D Dilutive Issuance (whether pursuant to a right of first refusal or otherwise), and who failed to purchase its Pro Rata Portion of such Series D Dilutive Issuance. Each such holder shall be deemed to have waived (i) the reduction in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) holder's shares of any class, whether of the Corporation or any other corporation (including stock dividends)Series D Preferred Stock that would have otherwise resulted pursuant to Subsection 4(d)(iv)(A) from such Series D Dilutive Issuance, (ii) rightsany reduction in the Conversion Price of such holder's shares of Series D Preferred Stock that would have otherwise resulted pursuant to Subsection 4(d)(iv)(A) from any future Series D Dilutive Issuances, options or warrants (excluding those referred to in Section 7.1(b)); and (iii) evidences the right to receive, upon conversion of its indebtedness or (iv) assets (including cash) of the CorporationSeries D Preferred Stock pursuant to this Section 4, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number any additional shares of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent Stock that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on issuable as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on reductions in the record date or the effective date thereof, as the case may be, the Holder had been the registered holder applicable Conversion Price; and such waiver shall be binding upon any transferee of the number shares of Common Shares sought to be acquired Series D Preferred Stock held by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1holder.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: Series F Convertible Preferred Stock and Warrant Purchase Agreement (Ascent Pediatrics Inc)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows: 57
(a) If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding shares of Class A Common Stock in shares of Class A Common Stock, the Conversion Price in effect at any the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of reduced by multiplying such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of shares of Class A Common Shares Stock outstanding immediately prior to at the close of business on the Record Date (as defined in Section 12.5(g)) fixed for such date determination and the denominator shall be the sum of such number of shares of Class A Common Stock and the total number of shares of Class A Common Shares outstanding Stock constituting such dividend or other distribution, such reduction to become effective immediately after such datethe opening of business on the day following the Record Date. Such adjustment shall be made successively whenever If any event referred to dividend or distribution of the type described in this Section 7.1(a12.5(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options is declared but not so paid or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record datemade, the Conversion Price shall again be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date dividend or distribution had not been declared.
(b) If the outstanding shares of Class A Common Stock shall be subdivided into a greater number of shares of Class A Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, if the outstanding shares of Class A Common Stock shall be combined into a smaller number of shares of Class A Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) If the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Class A Common Stock entitling such holders to subscribe for or purchase shares of Class A Common Stock at a price per share less than the Current Market Price (as defined in Section 12.5(g)) of Class A Common Stock on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding at the close of business on the Record Date plus the number of shares of Class A Common Stock which the aggregate offering price of the total number of shares of Class A Common Stock so offered for subscription or purchase would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Class A Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Class A Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Class A Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Price shall be readjusted to be the Conversion Price which would then be in effect based had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Class A Common Shares (Stock actually delivered. If such rights or securities convertible warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or exchangeable into warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Class A Common Shares) actually issued upon Stock at less than such Current Market Price, and in determining the exercise aggregate offering price of such rightsshares of Class A Common Stock, options there shall be taken into account any consideration received for such rights or warrants, as with the case may be;value of such consideration, if other than cash, to be determined by the Board of Directors.
(c1) if and whenever at any time during If the Adjustment Period the Corporation shall fix a record date for the making of a distribution Company shall, by dividend or otherwise, distribute to all or substantially all the holders of its outstanding Class A Common Shares Stock evidences of its indebtedness, cash or other assets (including securities, but excluding (i) shares any rights or warrants of any class, whether of the Corporation or any other corporation (including stock dividendsa type referred to in Section 12.5(c), (ii) rights, options or warrants (excluding those referred to dividends and distributions paid exclusively in Section 7.1(b)); cash and (iii) evidences of its indebtedness or (iv) assets (including cash) dividends and distributions of the Corporationtype described in Section 12.5(d)(2) below), then, in each such case, the Conversion Price shall be adjusted immediately after such record date reduced so that it the same shall be equal to the price determined by multiplying the Conversion Price in effect at the opening of business on the date after the Record Date with respect to such record date distribution by a fraction, fraction of which the numerator shall be the total number Current Market Price (determined as provided in Section 12.5(g)) of the Class A Common Shares outstanding Stock on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Board of Directors, subject to Section 7.4 whose determination shall be conclusive and described in a resolution of the Board of Directors) on such sharesdate of the portion of the indebtedness, rights, options, warrants, evidences of indebtedness cash or other assets so distributed, distributed applicable to one share of Class A Common Stock and of which the denominator shall be equal to the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation Class A Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then Current Market price minus the fair market value (as so determined) of the portion of the indebtedness, cash or any subsidiary shall be deemed not other assets so distributed applicable to be outstanding for one share of Class A Common Stock is equal to or greater than the purpose Current Market Price of any such computation;
(ii) such adjustment Class A Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made successively whenever so that each holder of Notes shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of indebtedness, cash or other assets such a record date is fixed;
holder would have received had such holder converted such Note (iiior portion thereof) immediately prior to the extent that such Record Date. If such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed or declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.5(d)(1) by reference to the Conversion actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;Class A Common Stock pursuant to Section 12.5(g) to the extent possible.
(d2) if and whenever at If the Company shall, by dividend or otherwise, distribute to all holders of its Class A Common Stock shares of any time during the Adjustment Period, there is a reclassification class of Capital Stock of the Common Shares Company or a capital reorganization any of the Corporation its subsidiaries or business units (other than as described in Section 7.1(a(i) any dividends or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or distributions to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder Section 12.5(a) applies and (ii) rights and warrants of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants type referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c12.5(c)), as the case may bethen in each such case, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on shall be reduced so that the applicable record or effective date, as same shall be equal to the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to price determined by multiplying the Conversion Price then in effect by a fraction the numerator of which shall be computed the Current Market Price (determined as defined below) of the Class A Common Stock and the denominator of which shall be the sum of (A) the fair market value of the portion of the Capital Stock so distributed applicable to one share of Class A Common Stock plus (B) such Current Market Price, such reduction to become effective immediately prior to the nearest whole cent and shall apply to successive subdivisionsopening of business on the day following the tenth trading day after the date on which "ex-dividend trading" commences for the applicable dividend or distribution on the New York Stock Exchange, redivisions, reductions, combinations, consolidations, distributions, issues the Nasdaq National Market or such other events resulting in any adjustment under regional exchange or market on which the provisions Class A Common Stock is then listed or quoted. For purposes of this Section 7.1.
(g12.5(d)(2) if, in the opinion only: "fair market value" of the DirectorsCapital Stock to be distributed to holders of Class A Common Stock means the average of the closing prices (as defined in Section 12.5(g)) of each share of such Capital Stock for the first ten Trading Days after the date on which "ex-dividend trading" commences for the applicable dividend or distribution on the New York Stock Exchange, the provisions of this Section 7.1 are not strictly applicable, Nasdaq National Market or if strictly applicable would not fairly protect such other regional exchange or market on which the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriateClass A Common Stock is then listed or quoted.
Appears in 1 contract
Sources: Indenture (Agere Systems Inc)
Adjustment of Conversion Price. The Subject to the requirements of any exchange on which the Debentures are then listed, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend in the ordinary course, distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), or otherwise, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares, provided that the Conversion Price so adjusted is not less than $1.35, which represents the Market Price of the Common Shares on the TSXV at closing on June 3, 2013, the date prior to the date the Corporation filed a Form 4A with the TSXV, in accordance with the policies of the TSXV. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of such right thereafter, shall, subject to the Conversion Rightimmediately following paragraph, be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 14. Any indenture entered into between the Corporation, any successor to the Corporation or effective datesuch purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. Notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10. Notwithstanding any other provision in this Indenture or in the form of any Debenture, if a holder would otherwise become entitled to receive, upon conversion of a Debenture, any property or securities (herein, "Ineligible Consideration") that would not constitute prescribed securities for the purposes of Section 212(1)(b)(vii)(E) of the Tax Act as it applied on December 31, 2007 ("Prescribed Securities"), such holder shall not be entitled to receive such Ineligible Consideration upon conversion of the Debenture, but shall instead be entitled to receive Prescribed Securities of the Corporation (or a successor, as the case may be) with a fair market value equal to the fair market value of such Ineligible Consideration, as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer's Certificate delivered to the Trustee); provided, however, that the Corporation or a successor, as the case may be, by virtue shall have the right (at the sole option of the Principal Sum having Corporation or the successor, as the case may be) but not the obligation to deliver such Ineligible Consideration to the holder upon the conversion of the Debenture in lieu of such Prescribed Securities. At least 30 days prior to the effective date of a transaction that would otherwise cause holders of Debentures to become entitled to receive Ineligible Consideration upon a conversion of the Debentures, the Corporation will give notice to such holders of the consideration into which the Debentures will be convertible following such transaction.
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c) and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the "Distributed Securities"), then been in each such case (unless the Corporation at its option chooses to distribute such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price for the Common Shares immediately prior to the record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee, all subject to the approval of the TSXV, if required) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation at its option chooses to make an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSXV, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers' Certificate delivered to the Trustee but shall be subject to the approval of the TSXV, if required) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) the adjustments provided for In any case in which this Section 7.1 are cumulative6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, and shallthe Corporation may defer, in until the case occurrence of adjustments such event, issuing to the Conversion Price be computed to holder of any Debenture converted after such record date and before the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under occurrence of such event the provisions of this Section 7.1.
(g) if, in the opinion additional Common Shares issuable upon such conversion by reason of the Directorsadjustment required by such event before giving effect to such adjustment; provided, however, that the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares upon the rights occurrence of the Holder event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in accordance with favour of holders of record of Common Shares on and after the intent and purposes hereof, the Directors shall make any adjustment in Date of Conversion or such provisions for the benefit of the Holder as the Directors deem appropriate.later d
Appears in 1 contract
Sources: Convertible Debenture Indenture (Crailar Technologies Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjustments, calculated by the Company, from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodCompany shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Corporation shallConversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction:
(i) subdividethe numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 10.4(g)) fixed for such determination, redivide and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or change its other distribution. Such reduction shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 10.04(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Shares Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such shares; or
(ii) reducesubdivision becomes effective shall be proportionately reduced, combine or consolidate its and conversely, in case outstanding shares of Common Shares Stock shall be combined into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective date of shall be proportionately increased, such subdivision, redivision, change, reduction, combination reduction or consolidationincrease, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such become effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after the opening of business on the day following the day upon which such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;subdivision or combination becomes effective.
(bc) if and whenever at any time during In case the Adjustment Period, the Corporation Company shall fix a record date for the issuance of issue rights, options or warrants (other than pursuant to the Rights Plan) and other than any rights, options or warrants referred to in Section 10.04(d) to all or substantially all the holders of its outstanding shares of Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading lower of the Current Market Price (as defined in Section 10.04(g)) or the Conversion Price then in effect (the "APPLICABLE PRICE") on the Record Date fixed for the determination of stockholders entitled to receive such record daterights, options or warrants, the Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date Record Date by a fraction, :
(i) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at the Applicable Price, and
(ii) the denominator of which shall be the number of shares of Common Shares Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such record date multiplied by rights, options or warrants. To the Twenty Day Weighted Average Trading Price on such record date, less the fair market value extent that shares of Common Stock (as determined by the Directors, subject or securities convertible into Common Stock) are not delivered pursuant to Section 7.4) of such rights, options or warrants, and upon the expiration or termination of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if had the adjustments made upon the issuance of such record date had rights, options or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights, options or warrants are not been fixed or so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect based upon if such date fixed for the number determination of stockholders entitled to receive such rights, options or warrants had not been fixed. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable Stock at less than the Applicable Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into Common Shares) actually issued upon the exercise of account any consideration received for such rights, options or warrants, as the case may be;value of such consideration if other than cash, to be determined by the Board of Directors.
(cd) if and whenever at any time during In case the Adjustment Period the Corporation shall fix a record date for the making of a distribution Company shall, by dividend or otherwise, distribute to all or substantially all the holders of its outstanding Common Shares Stock shares of any class of Capital Stock of the Company or the Capital Stock of any Subsidiary of the Company (other than any dividends or distributions to which Section 10.04(a) applies) or evidences of its Indebtedness or other assets, including securities, but excluding (i) shares of any classrights, whether of the Corporation options or any other corporation (including stock dividendswarrants referred to in Section 10.04(c), (ii) rightsany dividends or distributions in connection with a reclassification, options change, merger, consolidation, statutory share exchange, combination, sale or warrants (excluding those referred conveyance to in which Section 7.1(b)); 10.11 hereof applies and (iii) evidences of its indebtedness or dividends and distributions paid exclusively in cash (ivthe securities described in foregoing clauses (i), (ii) assets and (including cashiii) of hereinafter in this Section 10.04(d) called the Corporation"EXCLUDED SECURITIES"), then, in each such case, subject to the second succeeding paragraph of this Section 10.04(d), the Conversion Price shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date (as defined in Section 10.04(g)) with respect to such distribution by a fraction:
(i) the numerator of which shall be the Applicable Price on such date less the Fair Market Value on such date of the portion of the securities so distributed (other than excluded securities) applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and
(ii) the denominator of which shall be such Applicable Price. Such reduction shall become effective immediately prior to the opening of business on the day following the Record Date. However, in the event that the then Fair Market Value of the portion of the securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Applicable Price on the Record Date or , in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of securities so distributed (other than excluded securities) such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution (other than excluded securities), it must in doing so consider the prices in such market over the same period (the "REFERENCE PERIOD") used in computing the Current Market Price pursuant to Section 10.04(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the Holder. Rights, options or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events ("TRIGGER EVENT"):
(i) are deemed to be transferred with such shares of Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section10.04(d) (and no adjustment to the Conversion Price under this Section 10.04(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of Indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 10.04(d):
(iv) in the case of any such rights, options or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrant (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and
(v) in the case of such rights, options or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights, options and warrants had never been issued. For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and 10.04(c), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 10.04(b) applies, or rights, options or warrants to subscribe for or purchase shares of Common Stock to which Section10.04(c) applies (or any combination thereof), shall be deemed instead to be:
(vi) a dividend or distribution of the evidences of Indebtedness, assets, shares of Capital Stock, rights, options or warrants other than such shares of Common Stock, such subdivision or combination or such rights, options or warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply, respectively (and any Conversion Price reduction required by this Section 10.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(vii) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights, options or warrants (and any further Conversion Price reduction required by Sections 10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution shall be substituted as (x) "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "Record Date fixed for such determinations" and "Record Date" within the meaning of Section 10.04(a), (y) "the day upon which such subdivision becomes effective" and "the day upon which such combination becomes effective" within the meaning of Section 10.04(b), and (z) as "the date fixed for the determination of stockholders entitled to receive such rights, options or warrants", "the Record Date fixed for the determination of the stockholders entitled to receive such rights, options or warrants" and such "Record Date" within the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 10.04(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.11 hereof applies or as part of a distribution referred to in Section 10.04(d) hereof), in an aggregate amount that, combined together with: (1) the aggregate amount of any other such distributions to all holders of Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 10.04(e) has been made, and (2) the aggregate of any cash plus the Fair Market Value of consideration payable in respect of any tender offer or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of such distribution, and in respect of which no adjustment pursuant to Section 10.04(f) hereof has been made, exceeds 10% of the product of the Applicable Price on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then and in each such case, immediately after the close of business on such record date date, the Conversion Price shall be reduced so that it the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such record date Record Date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account numerator of which shall be equal to the lower of the Corporation or any subsidiary shall be deemed not Applicable Price on the Record Date less an amount equal to be the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding for on the purpose of any such computation;Record Date, and
(ii) the denominator of which shall be equal to the Applicable Price on such adjustment date. However, in the event that the then Fair Market Value of the portion of the securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Applicable Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made successively whenever so that each Holder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of cash such a record date is fixed;
Holder would have received had such Holder converted such Note (iiior portion thereof) immediately prior to such Record Date. In the extent event that such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;declared.
(f) In case a tender offer or exchange offer made by the adjustments provided Company or any of its Subsidiaries for in this Section 7.1 are cumulative, all or any portion of the Common Stock shall expire and shall, such tender offer or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion terms of the Directors, the provisions tender offer or exchange offer) of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights Purchased Shares (as defined below)) of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.an aggregate consideration h
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the requirements of a Recognized Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
: (i) subdivide, redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than cash dividends or distributions for which an adjustment would be made under Section 4.6(b)) (a "Common Share Reorganization"), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution, as the case may be, shall in be adjusted effective immediately after the case record date at which the holders of Common Shares are determined for the purpose of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case Share Reorganization by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such record date and by a fraction: (1) the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become so, that they were convertible or exchangeable on the record date on the basis upon which they first become convertible or exchangeable); and (2) the numerator of which shall be the number of Common Shares outstanding on such record date before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) 4.6 shall occur;. Any such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 4.6.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any applicable period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a4.6(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Corporation, any Holder shallof a Debenture who has not exercised its right of conversion prior to the date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the such Holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereofof this Indenture, as the case may be, the Holder had been the registered holder Holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 4.6(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the Holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder Holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 4.6(d) shall be a supplemental indenture entered into pursuant to the provisions of Section 12.4. Any indenture entered into between the Corporation, any successor to the Corporation or effective datesuch purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.6(d) and which shall apply to successive reclassifications, as capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. Nothing in this Section 4.6(d) shall affect or reduce the case may be, by virtue requirement for any Person to make a Change of Control Purchase Offer.
(e) If the Corporation shall make a distribution to all holders of shares in the capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 4.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.5(b) (the "Distributed Securities"), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each Holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the VWAP for the Common Shares for the five consecutive trading days immediately prior to the ex-distribution date and of which the numerator shall be the VWAP for the Common Shares for the first five consecutive trading days that occur immediately following ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately following the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of: (A) the VWAP for the Common Shares for the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on a Recognized Stock Exchange or effective date, market on which the Common Shares are then listed or quoted and (B) the product of: (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the Fair Market Value of the Spinoff Securities (which determination shall be conclusive and shall be evidenced by an Officer's Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the VWAP for the Common Shares for the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a Fair Market Value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the "Expiration Date") tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which: (i) the denominator shall be the sum of (A) the Fair Market Value of the aggregate consideration (which determination shall be conclusive evidence of such Fair Market Value and which shall be evidenced by an Officer's Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Common Shares") and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this clause (f) of Section 7.14.6 to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this clause (f).
(g) if, In any case in the opinion of the Directors, the provisions of which this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors 4.6 shall make any require that an adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.shall become effective immediatel
Appears in 1 contract
Sources: Indenture (C21 Investments Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares or securities exchangeable or convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend, distribution or otherwise, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares or securities exchangeable or convertible into Common Shares by way of a dividend, distribution or otherwise, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares or securities exchangeable or convertible into Common Shares by way of a dividend, distribution or otherwise shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(dc) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such Merger Event, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceMerger Event, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 6.5(k). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 6.5(c), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such Merger Event, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such kind purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(c) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this Section 6.5(c) applies shall be given in accordance with Section 6.10.
(d) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(b) and (ii) any dividend or distribution paid exclusively in cash (the “Distributed Securities”)), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the TSXV (or such other recognized stock exchange on which the Common Shares are listed for trading) and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as it so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 6.5(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. Notwithstanding the foregoing, if it had been a holder the securities distributed by the Corporation to all holders of its Common Shares on the applicable record date consist of capital stock of, or effective datesimilar equity interests in, as the case may be, by virtue a Subsidiary or other business of the Principal Sum having then been converted into Common Shares at Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex- dividend trading commences for such distribution on the TSXV (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(e) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided below) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, if any. If the application of this Section 6.5(e) to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this Section 6.5(e). For purposes of this Section 6.5(e), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(f) the adjustments provided for In any case in which this Section 7.1 are cumulative6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, and shallthe Corporation may defer, in until the case occurrence of adjustments such event, issuing to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in holder of any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in Debenture converted after such provisions for the benefit of the Holder as the Directors deem appropriate.record date a
Appears in 1 contract
Sources: Indenture (Organigram Holdings Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall will be subject to adjustment from time to time as follows:set forth below.
(a) if and whenever If at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, redivide subdivides or change its redivides the outstanding Common Shares into a greater number of such shares; or
, (ii) reducereduces, combine combines or consolidate its consolidates the outstanding Common Shares into a smaller number of such shares, or (iii) issues Shares or securities exchangeable or convertible into Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution or otherwise (other than the issue of Shares to holders of Shares who have elected to receive dividends or distributions in the form of Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Shares); then the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend, distribution or otherwise, as the case may be, shall must, in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changeredivision, or shallissue by way of dividend, distribution or otherwise; or must, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall must be made successively whenever any event referred to in this Subsection 6.5(a) occurs. Any such issue of Shares by way of a dividend or distribution will be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under subsections (b) and (c) of this Section 7.1(a) shall occur;6.5.
(b) if and whenever If at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix fixes a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, then the Conversion Price shall must be adjusted immediately after such record date so that it shall will equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall will be the total number of Common Shares outstanding on such record date multiplied plus a number of Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Share, and of which the denominator shall will be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Shares offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation convertible securities so offered are convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable). Such adjustment shall must be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall must be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if and whenever If at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix fixes a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares or other securities of any class, whether of the Corporation or any class other corporation (including stock dividends)than Shares, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Shares or securities convertible into Shares)); , (iii) evidences of its indebtedness or indebtedness, (iv) assets any property or other assets, or (including cashv) of the Corporation, cash dividends or distributions then, in each such case, the Conversion Price shall must be adjusted immediately after such record date so that it shall equal equals the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be is the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Share on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 acting reasonably, which determination will be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so or cash actually distributed, and of which the denominator shall will be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Share. Such adjustment shall must be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall must be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or other securities or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) if and whenever If at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(aSubsection 6.5(a) or a consolidation, amalgamation, arrangement arrangement, merger or merger acquisition of the Corporation with or into any other body corporate, trust, partnership Person or other entity, ; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation or similar transaction, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, acquisition sale or conveyance, liquidation, dissolution, winding-up or similar transaction, upon the exercise of the Conversion Rightsuch right thereafter, will be entitled to receive and shall must accept, in lieu of the number of shares Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such mergerreclassification, capital reorganization, consolidation, amalgamation, arrangement arrangement, merger or consolidation, acquisition or to which such sale or conveyance may be mademade or which holders of Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, acquisition, sale or conveyanceconveyance or liquidation, dissolution or winding-up or similar transaction, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Directors to give effect to or to evidence the Conversion Price;
(e) in any case in which Section 7.1(b) provisions of this Subsection 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, must, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, acquisition, sale or conveyance or liquidation, dissolution or winding-up or other similar transaction, enter into an indenture which provides, to the extent reasonably possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture must thereafter correspondingly be made applicable, as it would have received if it had been nearly as reasonably possible, with respect to any shares or other securities or property to which a holder of Common Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this Subsection 6.5(d) must be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Debenture Trustee must provide for adjustments which must be as nearly equivalent as may be practicable to the adjustments provided in this Subsection 6.5(d) and which must apply to successive reclassifications, capital reorganizations, consolidations, amalgamations, mergers, acquisitions sales or conveyances and to any successive liquidation, dissolution, winding-up or other similar transaction.
(e) In any case in which this Section 6.5 requires that an adjustment must become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation must deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Subsection 6.5(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common such additional Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Subsection 6.4(b).
(f) the The adjustments provided for in this Section 7.1 6.5 are cumulative, cumulative and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall must apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1Section; provided however that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price will be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided, further, that any adjustments which by reason of this Subsection 6.5(f) are not required to be made must be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Shares outstanding, Shares owned by or for the benefit of the Corporation must not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question must be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Corporation and acceptable to the Debenture Trustee (who may be the auditors of the Corporation); such accountants must have access to all necessary records of the Corporation and such determination will be binding upon the Corporation, the Debenture Trustee, and the Debentureholders.
(i) In case the Corporation takes any action affecting the Shares other than action described in this Section 6.5, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders (including their conversion rights), the Directors shall make any adjustment Conversion Price and the Shares issuable upon conversion of the Debentures must be adjusted in such provisions for the benefit manner and at such time, by action of the Holder Directors, subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures and the Shares are then listed, as the Directors deem appropriatein their sole discretion may determine to be equitable in the circumstances. Failure of the Directors to make such an adjustment will be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.
(j) Subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, no adjustment in the Conversion Price will be made in respect of any event described in Subsections 6.5(a), 6.5(b) or 6.5(c) other than the events described in 6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event.
(k) Except as stated above in this Section 6.5, no adjustment will be made in the Conversion Price for any Debenture as a result of the issuance of Shares at less than the Current Market Price for such Shares on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Sources: Trust Indenture (Boralex Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Shares, or (iii) issue Shares or securities convertible into or exchangeable for Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than pursuant to any distribution re-investment or Share purchase plans or similar arrangements), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution (including, in the case where securities convertible into or exchangeable for Shares are distributed, the number of Shares that would have been outstanding had all such securities been exchanged for or converted into Shares on such effective date or record date), or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.4(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under Subsections 5.4(b) and 5.4(c) of this Section 5.4.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share Share (or having a conversion or exchange price per shareShare) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus that number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Twenty Day Weighted Average Trading Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Shares offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Shares (other than pursuant to any distribution re-investment or any other corporation (including stock dividendsshare purchase plans or similar arrangements), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Shares or securities convertible or exchangeable into Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) other assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Share on such record date, less the fair market value (as determined by an Investment Dealer chosen by the DirectorsCorporation, subject to Section 7.4 which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) Subject to Section 9.1, if and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.4(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entityperson, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entity, or a liquidation, dissolution or winding up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership person or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 5.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly equivalent as may be practicable, with respect to any shares or other securities or property to which a holder of Common Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 5 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances or other similar transactions
(e) In any case in which this Section 5.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation shall defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends or distributions made on such additional Shares declared in favour of holders of record of Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.4(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common such additional Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.4(b).
(f) the The adjustments provided for in this Section 7.1 5.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.1.5.4(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment
(g) ifFor the purpose of calculating the number of Shares outstanding, Shares owned by or for the benefit of the Corporation or any Subsidiary of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 5.4, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation (who may be the Auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Trustee, and the Debentureholders (subject to manifest error).
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Section 5.4, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable directors would not fairly protect materially adversely affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time as the directors in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that the directors have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of the Holder TSX or the TSX-V, as the Directors deem appropriatecase may be, no adjustment in the Conversion Price shall be made in respect of any event described in Section 5.4(a), Section 5.4(b) or Section 5.4(c) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event.
(k) Except as stated above in this Section 5.4, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Shares at less than the Current Market Price for such Shares on the date of issuance.
Appears in 1 contract
Sources: Trust Indenture (NexGen Energy Ltd.)
Adjustment of Conversion Price. The Subject to TSX prior approval, the Automatic Conversion Price in effect at any date attaching to this Note shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during prior to the Adjustment PeriodMaturity Date, the Corporation Borrower shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; orCommon Shares;
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such sharesCommon Shares; or
(iii) issue to all or substantially all of the holders of the Common Shares, by way of stock distribution, stock dividend or otherwise, Common Shares or securities convertible into Common Shares; (any of the events described in (i), (ii) and (iii) being referred to as a "Share Reorganization"); the number of Common Shares that the Lender is entitled to receive upon the exercise of the Automatic Conversion Price (the "Exchange Number") shall be adjusted immediately after the record date at which the holders of the Common Shares are determined for the purpose of such Share Reorganization by multiplying the Exchange Number in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective record date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior after giving effect to the Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date) and the denominator shall be the total number of Common Shares outstanding immediately after prior to such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment PeriodMaturity Date, there is a reclassification of the Common Shares or a capital reorganization of the Corporation Borrower other than as described in Section 7.1(a5(a) or a consolidation, amalgamation, arrangement amalgamation or merger of the Corporation Borrower with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation Borrower as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, entity or any other business combination transaction involving the Holder shallBorrower (any such event being called a "Capital Reorganization") Automatic Conversion has not occurred prior to the effective date of such Capital Reorganization, upon the exercise of the such Automatic Conversion Rightthereafter, shall be entitled to receive and shall accept, in lieu of the number of shares then sought Common Shares the Lender would otherwise be entitled to be acquired by itacquire, the number of Common Shares or other securities or property of the Corporation Borrower or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidationCapital Reorganization, or to which such sale or conveyance may be made, as the case may be, that the Holder Lender would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceCapital Reorganization, if, on the record date or the effective date thereof, as the case may be, the Holder Lender had been the registered holder of the number of Common Shares sought to be acquired by it it;
(c) if and whenever at any time prior to the Maturity Date, the Borrower shall issue rights, options or warrants to all or substantially all the holders of the Common Shares pursuant to which it was those holders are entitled to subscribe for, purchase or otherwise acquire upon Shares or securities convertible or exchangeable for Common Shares ("Convertible Instruments") within a period of forty-five (45) days from the date of issue thereof at a price, or at a conversion price, of less than ninety-five percent (95%) of the ten day volume weighted average trading price of the Common Shares on the TSX at the record date for such distribution (any such issuance being herein called a "Rights Offering" and Common Shares that may be acquired in exercise of the Conversion Right and a contemporaneous and equal adjustment Rights Offering or upon conversion of the Convertible Instruments offered by the Rights Offering being herein called the "Offered Shares"), the Exchange Number shall be made adjusted effective immediately after the record date at which holders of Common Shares are determined for the purposes of the Rights Offering to an Exchange Number that is the product of (1) the Exchange Number in effect on the record date and (2) a fraction (a) the numerator of which shall be the sum of (i) the number of Common Shares outstanding on the record date plus (ii) the number of Offered Shares offered pursuant to the Conversion Price;
(e) in any case in Rights Offering or the maximum number of Offered Shares into which Section 7.1(b) or 7.1(c) require that an adjustment be made the Convertible Instruments so offered pursuant to the Conversion PriceRights Offering may be converted, no such adjustment as the case may be; and (b) the denominator of which shall be made ifthe sum of (i) the number of Common Shares outstanding on the record date for the Rights Offering; and (ii) the number arrived at when (A) either the product of (1) the number of Offered Shares so offered and (2) the price at which those Common Shares are offered, subject or the product of (3) the conversion price thereof and (4) the maximum number of Offered Shares for or into which the Convertible Instruments so offered pursuant to the prior approval Rights Offering may be converted, as the case may be, is divided by (B) the ten day volume weighted average trading price of applicable stock exchanges the Holder receives Common Shares on the TSX on the record date. Any Offered Shares owned by or held for the account of the Borrower shall be deemed not to be outstanding for the purpose of any computation; if all the rights, options or warrants referred are not so issued or if all rights, options or warrants are not exercised prior to the expiration thereof, the Exchange Number shall be readjusted to the Exchange Number in effect immediately prior to the record date and the Exchange Number shall be further adjusted based upon the number of Offered Shares (or Convertible Instruments into Offered Shares) actually delivered upon the exercise of the rights, options or warrants, as the case may be, but subject to any other adjustment required hereunder by reason of any event arising after that record date;
(d) if and whenever prior to the Maturity Date, the Borrower shall issue or distribute to all or substantially all the holders of the Common Shares (i) securities of any class other than Shares, or (ii) rights, options or warrants other than rights, options or warrants exercisable within forty-five (45) days from the date of issue thereof at a price, or at a conversion price, of at least ninety five percent (95%) of the ten (10) day volume weighted average trading price of the Common Shares on the TSX at the record date for such distribution, or (iii) evidences of indebtedness, or (iv) any other assets (excluding cash dividends paid in the ordinary course) and that issuance or distribution does not constitute a Share Reorganization or a Rights Offering (any of those events being herein called a "Special Distribution"), the Exchange Number shall be adjusted effective immediately after the record date at which the holders of Common Shares are determined for purposes of the Special Distribution to an Exchange Number that determined by multiplying the unadjusted Exchange Number by a fraction (1) the numerator of which will be the product of the number of Common Shares outstanding on such record date and the ten day volume weighted average trading price thereof on the record date; and (2) the denominator of which will be (a) the product of the number of Common Shares outstanding on such record date and the ten day volume weighted average trading price thereof on the record date; less (b) the applicable Fair Market Value on the record date of the shares, rights, options, warrants, evidences of indebtedness or other assets issued or distributed in the Special Distribution. For purposes of this Section 7.1(b5(d), "cash dividends paid in the ordinary course" means dividends having a value which do not exceed, in the aggregate, the greater of (a) one hundred and fifty percent (150%) of the aggregate amount or value of dividends paid by the share Borrower on the Common Shares in its immediately preceding financial year; and (b) one hundred percent (100%) of the aggregate consolidated net income of the Borrower determined before computation of unusual or extraordinary items and in accordance with GAAP, for the immediately preceding fiscal year. For purposes of this Section 5(d), "Fair Market Value" as at any date, means: (i) with respect to a security listed and posted for trading on the TSX or any other stock exchange, the volume weighted average trading price of such securities on such stock exchange for the ten (10) consecutive trading days immediately preceding, but not including, the day as of which the fair market value is being determined, or (ii) with respect to a security not listed and posted for trading on the TSX or any other stock exchange, or any other property, the fair market value thereof on such date as determined by three independent members of the Investment Industry Regulatory Organization of Canada selected from time to time by the board of directors of the Borrower for such purpose. Any Common Shares owned by or held for the account of the Borrower shall be deemed not to be outstanding for the purpose of any such computation. To the extent that the distribution of shares, rights, options, warrants, evidences of indebtedness or assets referred if not so made or to the extent that any rights, options or warrants so distributed are not exercised, the Exchange Number shall be readjusted to the Exchange Number that would then be in Section 7.1(c)effect based upon the shares, rights, options, warrants, evidences of indebtedness or assets actually distributed or based upon the number of Common Shares or convertible securities actually delivered upon the exercise of the rights, options or warrants, as the case may be, in such kind and number as it would have received if it had been a holder but subject to any other adjustment required hereunder by reason of Common Shares on any event arising after the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(fe) the adjustments provided for in this Section 7.1 are cumulative, and shall, Article 5 in the case number of adjustments Common Shares and classes of securities which are to the be received on Automatic Conversion Price be computed to the nearest whole cent are cumulative and shall apply to successive issues, subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or distributions and any other events resulting that would require an adjustment of the Exchange Number or the number or kind securities issuable hereunder;
(f) if and whenever at any time prior to the Maturity Date, the Borrower shall reclassify or otherwise change the outstanding Common Shares, the Automatic Conversion shall be adjusted effective immediately upon the reclassification becoming effective so that the Lender shall be entitled to receive Common Shares as it would have received had the Automatic Conversion occurred immediately prior to the effective date, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Article 5;
(g) any adjustment under of the Exchange Number as set forth herein shall also include a corresponding adjustment to the Conversion Price which shall be calculated by multiplying the Conversion Price by a fraction: (i) the numerator of which shall be the Exchange Number prior to the adjustment, and (ii) the denominator of which shall be the Exchange Number after the adjustment. No adjustment in the Conversion Price shall be required unless the cumulative effect of such adjustment or adjustments would change the Conversion Price by at least one percent (1%) of the prevailing Conversion Price provided, however, that any adjustments which, except for the provisions of this Section 7.1.subsection would otherwise have been required to be made, shall be carried forward and taken into account in any subsequent adjustment;
(gh) ifall calculations under this Article 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Article 5, the number of Common Shares outstanding as of a given date shall be the sum of the number of Common Shares (excluding treasury shares, if any) outstanding;
(i) notwithstanding the foregoing, no adjustment will be made in respect of an event described herein if the Lender is entitled to participate in the opinion event on the same terms, mutatis mutandis, as if the Automatic Conversion occurred immediately before the effective date of or record date for the event, such participation being subject to the prior written consent of any stock exchange upon which the Common Shares are listed for trading;
(j) except as otherwise provided pursuant to the Business Corporations Act (Ontario), this Note and the Automatic Conversion herein shall not entitle the Lender to any rights of a shareholder of the DirectorsBorrower, unless and to the provisions extent converted into Common Shares;
(k) if at any time a dispute arises with respect to adjustments provided for in this Article 5, such dispute will be conclusively determined by the auditors of this Section 7.1 are not strictly applicablethe Borrower, or if strictly applicable would they are not fairly protect the rights appointed or unable or unwilling to act, by such other firm of independent chartered accountants as may be selected by action of the Holder in accordance with board of directors of the intent Borrower and purposes hereofany such determination will be binding upon the Borrower, the Directors shall make Lender and shareholders of the Borrower. The Borrower will provide such auditors or accountants with access to all necessary records of the Borrower;
(l) the Borrower will from time to time, as soon as is reasonably practicable after the occurrence of any event which requires an adjustment or readjustment as provided in this Article 5, give written notice to the Lender specifying the event requiring such adjustment or readjustment and the results thereof, including the resulting Conversion Price; and
(m) the Borrower covenants to and in favour of the Lender that so long as any principal amount of the Loan hereunder remains outstanding, it will give written notice to the Lender of its intention to fix a record date for any event referred to in this Article 5 (other than a subdivision or consolidation of Common Shares) which may give rise to an adjustment in the Conversion Price and, in each case, such provisions notice must specify the particulars of such event, the record date and the effective date for such event; provided that the benefit Borrower is only required to specify in such notice such particulars of such event as have been fixed and determined on the Holder as the Directors deem appropriatedate on which such notice is given. Such notice must be given not less than five days, in each case, prior to such applicable record date or effective date.
Appears in 1 contract
Sources: Convertible Secured Bridge Loan Agreement (Largo Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time as follows:
(a) if and whenever In case the Company shall, at any time during or from time to time while any of the Adjustment PeriodNotes are outstanding, pay a dividend or make a distribution in shares of Common Stock to all holders of its outstanding shares of Common Stock, then the Corporation shallConversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction:
(i) subdividethe numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as hereinafter defined) fixed for such determination; and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution. Such reduction shall become effective immediately after the opening of business on the day following the Record Date fixed for such determination. If any dividend or distribution of the type described in this Section 2.04(a) is declared but not so paid or made, redivide the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or change distribution had not been declared.
(b) In case the Company shall, at any time or from time to time while any of the Notes are outstanding, subdivide its outstanding shares of Common Shares Stock into a greater number of shares of Common Stock, then the Conversion Price in effect at the opening of business on the day following the day upon which such shares; or
(ii) reducesubdivision becomes effective shall be proportionately reduced, and conversely, in case the Company shall, at any time or from time to time while any of the Notes are outstanding, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; shares of Common Stock, then the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective date of such subdivision, redivision, change, reduction, combination shall be proportionately increased. Such reduction or consolidationincrease, as the case may be, shall in become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall, at any time or from time to time while any of the events Notes are outstanding, issue rights or warrants (other than any rights or warrants referred to in (iSection 2.04(d)) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding shares of Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into shares of Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Sale Price on the Business Day immediately preceding the date of the announcement of such record dateissuance (treating the conversion price per share of the securities convertible into Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible security), then the Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date of announcement by a fraction, :
(i) the numerator of which the numerator shall be the number of shares of Common Stock outstanding on the close of business on the date of announcement, plus the number of shares or securities which the aggregate offering price of the total number of shares or securities so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Sale Price of the Common Shares outstanding on such record date multiplied by Stock; and
(ii) the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and denominator of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date of announcement, plus the total number of additional shares of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
Stock so offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever become effective immediately after the opening of business on the day following the date of announcement of such a record date is fixed;
(iii) to issuance. To the extent that any such rights, options shares of Common Stock (or warrants securities convertible into shares of Common Stock) are not exercised prior delivered pursuant to such rights or warrants, upon the expiration thereofor termination of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if had the adjustments made upon the issuance of such record date had rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into shares of Common Stock) actually delivered. In the event that such rights or warrants are not been fixed or so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect based upon if the number date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon Stock at less than such Sale Price, and in determining the exercise aggregate offering price of such rightsshares of Common Stock, options there shall be taken into account any consideration received for such rights or warrants, as the case may be;value of such consideration if other than cash, to be determined by the Board of Directors.
(ci) if and whenever In case the Company shall, at any time during or from time to time while any of the Adjustment Period the Corporation shall fix a record date for the making of a distribution Notes are outstanding, by dividend or otherwise, distribute to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation Common Stock (including stock dividendsany such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the Common Stock is not changed or exchanged), cash, shares of its capital stock (iiother than any dividends or distributions to which Section 2.04(a) rightsapplies), options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or other assets, including securities, but excluding (ivx) any rights or warrants referred to in Section 2.04(c), (y) dividends or distributions of stock, securities or other property or assets (including cash) in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 2.05 applies and (z) dividends and distributions paid exclusively in cash (such capital stock, evidence of its indebtedness, cash, other assets or securities being distributed hereinafter in this Section 2.04(d) called the Corporation"distributed assets"), then, in each such case, subject to Section 2.04(d)(iv), Section 2.04(d)(v), Section 2.04(d)(vi) and Section 2.04(d)(vii), the Conversion Price shall be adjusted immediately after such record date reduced so that it the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date with respect to such record date distribution by a fraction, :
(A) the numerator of which the numerator shall be the total number Current Market Price of the Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record dateStock, less the fair market value Fair Market Value (as determined by hereinafter defined) on such date of the Directors, subject to Section 7.4 portion of such shares, rights, options, warrants, evidences of indebtedness or the distributed assets so distributed, and distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Record Date) (determined as provided in Section 2.04(g)) on such date; and
(B) the denominator of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary Current Market Price. Such reduction shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) become effective immediately prior to the extent opening of business on the day following the Record Date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed declared.
(ii) If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 2.04(d) by reference to the actual or when issued trading market for any distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 2.04(g) to the extent possible, unless the Board of Directors determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the Holders.
(iii) In the event any such distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Company's Subsidiaries (a "Spin-Off"), the Fair Market Value of the securities to be distributed shall equal the average of the closing sale prices of such securities on the principal securities market on which such securities are traded for the five consecutive Trading Days commencing on and including the sixth day of trading of those securities after the effectiveness of the Spin-Off, and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten initial public offering of the securities in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities distributed in the Spin-Off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Sale Price for the Common Stock on the same Trading Day.
(iv) Rights or warrants distributed by the Company to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 2.04(d) (and no adjustment to the Conversion Price under this Section 2.04(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which would then be in effect based upon such shares right or rightswarrant shall become exercisable to purchase different distributed assets, options or warrants or evidences of indebtedness or assets actually distributedother assets, as or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 2.04(d):
(A) in the case may be;
(d) if and whenever at of any time during the Adjustment Period, there is a reclassification of the Common Shares such rights or a capital reorganization of the Corporation other than as described in Section 7.1(a) warrants which shall all have been redeemed or a consolidation, amalgamation, arrangement or merger of the Corporation with or into repurchased without exercise by any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entityholders thereof, the Holder shall, Conversion Price shall be readjusted upon the exercise of the Conversion Right, be entitled such final redemption or repurchase to receive and shall accept, in lieu of the number of shares then sought give effect to be acquired by it, the number of Common Shares such distribution or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be madeTrigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of shares of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of shares of Common Stock as of the date of such redemption or repurchase; and
(B) in the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued.
(v) For purposes of this Section 2.04(d) and Section 2.04(a), Section 2.04(b) and Section 2.04(c), any dividend or distribution to which this Section 2.04(d) is applicable that also includes (i) shares of Common Stock, (ii) a subdivision or combination of shares of Common Stock to which Section 2.04(b) applies or (iii) rights or warrants to subscribe for or purchase shares of Common Stock to which Section 2.04(c) applies (or any combination thereof), shall be deemed instead to be:
(A) a dividend or distribution of the Holder would have been evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Section 2.04(a), Section 2.04(b) and Section 2.04(c) apply, respectively (and any Conversion Price reduction required by this Section 2.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(B) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Section 2.04(a), Section 2.04(b) and Section 2.04(c) with respect to such dividend or distribution shall then be made), except:
(I) the Record Date of such dividend or distribution shall be substituted as (i) "the date fixed for the determination of stockholders entitled to receive on such reclassificationdividend or other distribution," and "Record Date fixed for such determination" within the meaning of Section 2.04(a), capital reorganization(ii) "the day upon which such subdivision becomes effective" and "the day upon which such combination becomes effective" within the meaning of Section 2.04(b), consolidation, amalgamation, arrangement and (iii) as "the date fixed for the determination of stockholders entitled to receive such rights or merger, sale warrants" within the meaning of Section 2.04(c); and
(II) any shares of Common Stock included in such dividend or conveyance, if, distribution shall not be deemed "outstanding at the close of business on the record date fixed for such determination" within the meaning of Section 2.04(a) and any reduction or the effective date thereof, as the case may be, the Holder had been the registered holder of increase in the number of shares of Common Shares sought Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(vi) In the event of any distribution referred to be acquired in this Section 2.04(d) in which (1) the Fair Market Value (as determined by it and the Board of Directors) of such distribution applicable to which it was entitled to acquire upon one share of Common Stock (determined as provided above) equals or exceeds the exercise average of the Conversion Right and a contemporaneous and equal adjustment shall be made to Sale Prices of the Conversion Price;
Common Stock over the ten consecutive Trading Day period ending on the Record Date for such distribution or (e2) the average of the Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Record Date for such distribution exceeds the Fair Market Value of such distribution by less than $1.00, then, in any case each such case, in which Section 7.1(b) or 7.1(c) require that lieu of an adjustment be made to the Conversion Price, no such adjustment adequate provision shall be made ifso that each Holder shall have the right to receive upon conversion of a Security, subject in addition to shares of Common Stock, the kind and amount of such distribution such Holder would have received had such Holder converted such Security immediately prior to the prior approval Record Date for determining the shareholders entitled to receive the distribution.
(vii) In the event of applicable stock exchanges any distribution described in Section 2.04(d), where the Holder receives Fair Market Value of such distribution per share of Common Stock (as determined by the rightsBoard of Directors) exceeds 10% of the Sale Price of a share of Common Stock on the Business Day immediately preceding the declaration date for such distribution, options or warrants in the event of any distribution referred to in Section 7.1(b) 2.04(c), then, if the Notes are otherwise convertible pursuant to this Article 2, the Company will be required to give notice to the Holders of Securities at least 20 days prior to the Ex-Dividend Time for the distribution and, upon the giving of notice, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the Holders of such conversion right, until the close of business on the Business Day prior to the Ex-Dividend Time or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in Company announces that such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments distribution will not take place. No adjustment to the Conversion Price or the ability of a Holder of a Note to convert will be computed to made if the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting Holder will otherwise participate in any adjustment under the provisions of this Section 7.1such distribution without conversion.
(ge) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.In case t
Appears in 1 contract
Sources: Second Supplemental Indenture (HCC Insurance Holdings Inc/De/)
Adjustment of Conversion Price. The Subject to the requirements of the TSX (or such other exchange on which the Debentures are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(cd) if If and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) prior to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences Time of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment PeriodExpiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or to pay the Make Whole Premium in accordance with Section 2.4, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If the Corporation shall make a distribution to all holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the five-day VWAP for the Common Shares immediately prior to the ex‑distribution date and of which the numerator shall be the five-day VWAP for the Common Shares for the first five trading days that occur immediately post the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSX Venture Exchange (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers’ Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (f) of Section 6.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.1.
(g) if6.5(f), in the opinion term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions Corporation for the benefit Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the Holder as the Directors deem appropriate.purchase of Common Shares in issuer bids and
Appears in 1 contract
Sources: Debenture Indenture (Molycorp, Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall will be subject to adjustment from time to time in the events and in the manner provided as follows:
(a1) if If and whenever at any time during after the Adjustment Perioddate hereof, and prior to the Time of Expiry, the Corporation shallCorporation:
(i) subdivide, redivide issues Common Shares or change securities exchangeable for or convertible into Common Shares to the holders of all or substantially all the Common Shares as a share dividend or other dividend;
(ii) subdivides its outstanding Common Shares into a greater number of such sharesCommon Shares; or
(iiiii) reduce, combine or consolidate consolidates its outstanding Common Shares into a smaller number of Common Shares, (any of such shares; events in clauses (i), (ii) and (iii) of this subsection being called a “Share Reorganization”), then the Conversion Price in effect on shall be adjusted effective immediately after the effective date or record date for the happening of such subdivision, redivision, change, reduction, combination or consolidationa Share Reorganization, as the case may be, shall in at which the case holders of Common Shares are determined for the purpose of the events referred to in (i) above, be decreased in proportion to Share Reorganization so that it shall equal the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case price determined by multiplying the Conversion Price in effect on immediately prior to such effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the total number of Common Shares outstanding immediately prior on such effective date or record date before giving effect to such date Share Reorganization and the denominator shall of which will be the total number of Common Shares outstanding immediately after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;).
(b2) if If and whenever at any time during after the Adjustment Perioddate hereof, and prior to the Time of Expiry, the Corporation shall fix fixes a record date for the issuance issue of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them(the “Rights”) under which such holders are entitled, for during a period expiring not more than 45 forty-five (45) days after the date of such record dateissue (the “Rights Period”), to subscribe for or purchase Common Shares (or securities convertible or exchangeable into for Common Shares) at a price per share Common Share to the holder (or having a at an exchange or conversion or exchange price per shareCommon Share during the Rights Period to the holder in the case of securities exchangeable for or convertible into Common Shares) of less than 95% of the Twenty Day Weighted Average price (the “Current Market Price”) which is equal to the weighted average trading price for the period of 20 Trading Price on Days ending three days prior to such record datedate (any of such events being called a “Rights Offering”), then the Conversion Price shall be adjusted effective immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account end of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Rights Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which the numerator shall will be the aggregate of:
(1) the total number of Common Shares outstanding as of the record date for the Rights Offering; plus
(2) a number determined by dividing (a) the product of the number of Common Shares issued or subscribed for during the Rights Period upon the exercise of the rights, warrants or options under the Rights Offering and the price at which such Common Shares are offered (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by (b) the Current Market Price of the Common Shares as of the record date for the Rights Offering, and
(ii) the denominator of which will be the number of Common Shares outstanding on such record date multiplied by plus the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding (or securities convertible or exchangeable for Common Shares) actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. If the Holder has exercised the right to convert Common Shares in accordance with this Article 6 during the period beginning immediately after the record date for a Rights Offering and ending on the last day of the Rights Period for the Rights Offering the Holder will, in addition to the Common Shares to which the Holder would otherwise be entitled upon such conversion, be entitled to that number of additional Common Shares equal to the difference, if any, between the Common Shares received on such conversion and the Common Shares that would have been received if the Conversion Price as adjusted for such Rights Offering pursuant to this subsection had applied when the Holder exercised the right to convert; provided that the provisions of Section 6.7 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this subsection. Such additional Common Shares will be deemed to have been issued to the Holder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to the Holder within five Business Days following the end of the Rights Period.
(3) If and whenever at any time after the date hereof and prior to the Time of Expiry, the Corporation fixes a record date multiplied for the making of distribution (by such Twenty Day Weighted Average Trading Price provided that:
way of dividend or otherwise) to the holders of all or substantially all the Common Shares of (i) Common Shares owned by securities of the Corporation, including rights, options or held for the account warrants to acquire securities of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed its property or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or assets and including evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.or
Appears in 1 contract
Sources: Convertible Debenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that they shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares, provided that the Conversion Price so adjusted is not less than $2.60, which represents the closing trading price of the Common Shares on the Toronto Stock Exchange on July 4, 2016, less the maximum permitted discount pursuant to the policies of the Toronto Stock Exchange. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustees pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustees shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or any payment in connection therewith in accordance with Section 2.5, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the five day VWAP for the Common Shares immediately prior to the record date and of which the numerator shall be the five day VWAP for the Common Shares for the first five trading days that occur immediately following such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the Toronto Stock Exchange, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers’ Certificate delivered to the Trustees) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the nearest whole cent Trustees) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (f) of Section 6.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.1.
(g) if6.5(f), in the opinion term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions Corporation for the benefit Common Shares and all references to “purchases” of the Holder as the Directors deem appropriate.Common Shares in issuer bids
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the requirements of the TSX Venture Exchange (or such other exchange on which the Debentures are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or to pay the Make Whole Premium in accordance with Section 2.4, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If the Corporation shall make a distribution to all holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the five day VWAP for the Common Shares immediately prior to the ex-distribution date and of which the numerator shall be the five day VWAP for the Common Shares for the first five trading days that occur immediately post the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSX Venture Exchange (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers’ Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (f) of Section 6.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.1.
(g) if6.5(f), in the opinion term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions Corporation for the benefit Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the Holder as the Directors deem appropriate.purchase of Common Shares
Appears in 1 contract
Sources: Debenture Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of stock dividend or other distribution, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a stock dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, stock dividend or changeother distribution, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.5(a) shall occur;. Any such issue of Common Shares by way of stock dividend or other distribution shall be deemed to have been made on the record date for the stock dividend or distribution for the purpose of calculating the number of outstanding Common Shares under Section 5.5(c) and Section 5.5(d).
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to all or substantially all holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) of less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a "Merger Event"), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the such number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which all or substantially all holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and conversion right. Notwithstanding any other provision of this Section 5.5, if a contemporaneous and equal adjustment shall holder of a Debenture would otherwise be made entitled to receive, upon conversion of the Conversion Price;
Debenture, any property (e) in any case in which Section 7.1(bincluding cash) or 7.1(csecurities that would not constitute "prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) require that an adjustment of the Tax Act as it applied on December 31, 2007 ("Ineligible Consideration"), such holder of a Debenture shall not be made entitled to receive such Ineligible Consideration but the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) Corporation or the share rights, options, warrants, evidences of indebtedness successor or assets referred to in Section 7.1(c)acquirer, as the case may be, in shall have the right (at the sole discretion of the Corporation or the successor or the acquirer, as the case may be) to deliver either such kind and number Ineligible Consideration or "prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) of the Tax Act as it would have received applied on December 31, 2007 with a market value (as conclusively determined by the Board of Directors) equal to the market value of such Ineligible Consideration. If determined appropriate by the Board of Directors or if it had been a holder required by Article 12, to give effect to or to evidence the provisions of Common Shares on this Section 5.5(d), the applicable record date Corporation, its successor, or effective datesuch purchasing Person or other entity, as the case may be, by virtue shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the Principal Sum having provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Subject to Article 12, any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances and to any successive liquidation or winding up or other similar transaction. For greater certainty, nothing in this Section 5.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or to issue Common Shares calculated on the basis of the Change of Control Conversion Price in accordance with Section 2.4, and notice of any transaction to which this Section 5.5(d) applies shall be given in accordance with Section 5.10.
(e) If the Corporation shall make a distribution to all or substantially all holders of Common Shares of shares in the capital of the Corporation, other than Common Shares or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which any adjustment was made pursuant to Section 5.5(c), and (y) any dividend or distribution paid exclusively in cash) (the "Distributed Securities"), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination, absent manifest error, shall be conclusive evidence of such fair market value, subject to approval by the TSX or such other exchange or market on which the Common Shares are then listed or quoted for trading, and which shall be evidenced by an Officer's Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (e) of Section 5.5 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business unit of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the volume weighted average trading price of one Common Share over the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSX, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted for trading and (B) the product of (i) the volume weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer's Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the volume weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the "Expiration Date") tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), and shall, in the case of adjustments to the Conversion Price shall be computed to adjusted so that the nearest whole cent and same shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting equal the rate determined by multiplying the Conversion Price in any adjustment under effect immediately preceding the provisions close of this Section 7.1.
(g) if, in business on the opinion Expiration Date by a fraction of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.whi
Appears in 1 contract
Sources: Convertible Debenture Indenture
Adjustment of Conversion Price. The Subject to the requirements of the Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if Subject to the approval of the Exchange, any time prior to the Maturity Date, the Corporation may decrease the Conversion Price by any amount as determined by the Board of Directors as would be in the best interests of the Corporation, which determination shall be conclusive, in which case a notice of the decrease in the Conversion Price must be mailed to the Noteholders at least two Business Days prior to the date the decreased Conversion Price takes effect, which notice shall state the decreased Conversion Price and the period during which such decreased Conversion Price will be in effect.
(b) If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares) (any such shares; event, a “Capital Reorganization”), the Conversion Price shall be adjusted by multiplying the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination event referred to in (i) or consolidation(ii) or on the record date of such dividend or distribution referred to (iii), as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction fraction, the numerator of which the numerator shall be the total number of Common Shares outstanding immediately prior before giving effect to such date Capital Reorganization and the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such dateCapital Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) Capital Reorganization shall occur;.
(bc) if If and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number Time of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment PeriodExpiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.4(b) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned Subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Note who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Note would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 5.4(c), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Notes to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Notes is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.4(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 13. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.4(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 5.4(c) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer in accordance with Section 6.10 or an Officer on Sale of Assets in accordance with Section 6.11, and notice of any transaction to which this Section 5.4(c) applies shall be given in accordance with Section 5.9.
(d) In any case in which this Section 5.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Note converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.4(d), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.3(b).
(fe) the The adjustments provided for in this Section 7.1 5.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.15.4(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gf) ifFor the purpose of calculating the number of Common Shares outstanding, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, Common Shares owned by or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriateCorporation shall not be counted.
Appears in 1 contract
Sources: Indenture (Terrace Energy Corp)
Adjustment of Conversion Price. (1) The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:in this Section 8.4 provided.
(a2) if If and whenever at any time during the Adjustment Period, the Corporation shall:
Parent shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; or (iii) issue any Common Shares of the Parent to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than any stock dividends constituting dividends paid in the ordinary course), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a stock dividend, as the case may be, shall be decreased, in the case of the events referred to in (i) and (iii) above, be decreased in the proportion to which the number of outstanding Common Shares resulting from outstanding before such subdivision, redivision or changedividend bears to the number of Common Shares outstanding after such subdivision, redivision or dividend, or shallshall be increased, in the case of the events referred to in (ii) above, in the proportion which the number of Common Shares outstanding before such reduction, combination, or consolidation bears to the number of Common Shares outstanding after such reduction, combination or consolidation. Any such issue of Common Shares by way of a stock dividend shall be increased in proportion deemed to have been made on the record date fixed by the Board for such stock dividend for the purpose of calculating the number of outstanding Common Shares resulting from such under this Section 8.4(2).
(3) In the case of any reclassification of, or other change in, the outstanding Common Shares of the Parent other than a subdivision, redivision, reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record dateconsolidation, the Conversion Price shall be adjusted in such manner as the Board, with the approval of the Administrative Agent, determines to be appropriate on a basis consistent with this Section 8.4.
(4) In any case in which this Section 8.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Parent may defer, until the occurrence of such event, issuing to the Holder of any Note converted after such record date so that it shall equal and before the amount determined by multiplying occurrence of such event the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of additional Common Shares outstanding on issuable upon such record date multiplied conversion by reason of the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied adjustment required by such Twenty Day Weighted Average Trading Price provided that
(i) event before giving effect to such adjustment. The Parent shall deliver to such Holder in any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, an appropriate instrument evidencing such Holder’s right to receive such additional Common Shares upon the Conversion Price shall be adjusted immediately after occurrence of the event requiring such record date so that it shall equal adjustment and the price determined by multiplying the Conversion Price in effect right to receive any distributions made on such record date by a fraction, of which the numerator shall be the total number of additional Common Shares outstanding on such declared in favour of holders of record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on and after the applicable Date of Conversion or such later date as such Holder would, but for the provisions of this Section 8.4(4), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 8.4(2).
(f5) the The adjustments provided for in this Section 7.1 8.4 are cumulative, and shall, shall in the case of adjustments to the Conversion Price be computed to the nearest whole one-tenth of one cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this section. Notwithstanding any other provision of this Section 7.18.4, no adjustment of the Conversion Price shall be required in respect of any such event unless such adjustment would require an increase or decrease of at least one per cent in the Conversion Price then in effect. Any adjustments which by reason of the preceding sentence of this Section 8.4(5) are not required to be made shall be carried forward and taken into account on any subsequent adjustment.
(g6) ifIf any question arising with respect to the adjustments provided in this Section 8.4, in such question shall be conclusively determined by a firm of independent public accountants (who may be the opinion Parent’s auditors) appointed by the Parent and acceptable to the Administrative Agent. Such independent public accountants shall have for such purposes access to all necessary records of the DirectorsParent and such determination shall be binding upon the Parent, the provisions of this Section 7.1 are not strictly applicableAdministrative Agent, or if strictly applicable would not fairly protect and the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriateHolders.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
Trust shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares Trust Units into a greater number of such shares; or
units, (ii) reduce, combine or consolidate its the outstanding Common Shares Trust Units into a smaller number of such shares; units, or (iii) issue Trust Units to the holders of all or substantially all of the outstanding Trust Units by way of a dividend or distribution (other than the issue of Trust Units to holders of Trust Units who have elected to receive dividends or distributions in the form of Trust Units in lieu of cash dividends or cash distributions paid in the ordinary course on the Trust Units), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Trust Units by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares Trust Units resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares Trust Units resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Trust Units by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Trust Units under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation Trust shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares Trust Units entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares Trust Units (or securities convertible or exchangeable into Common SharesTrust Units) at a price per share unit (or having a conversion or exchange price per shareunit) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Trust Unit on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied plus a number of Trust Units equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Trust Units offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Trust Unit, and of which the denominator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Trust Units offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares Trust Units (or securities convertible or exchangeable into Common SharesTrust Units) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation Trust shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares Trust Units of (i) shares units of any class, whether class other than Trust Units and other than units distributed to holders of Trust Units who have elected to receive dividends or distributions in the Corporation form of such units in lieu of dividends or any other corporation (including stock dividends)distributions paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof as at a specified date to in Section 7.1(bsubscribe for or purchase Trust Units or securities convertible into Trust Units for a period of not more than 45 days after such date)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Trust Unit on such record date, less the fair market value (as determined by the Directorsdirectors of the Administrator, subject to Section 7.4 on behalf of the Trust, with the approval of the Debenture Trustee, which determination shall be conclusive) of such sharesunits, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares Trust Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Trust Unit. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only such shares or units, rights, options or warrants or options, warrants, evidences of indebtedness or assets actually distributeddistributed were included in such fraction, as the case may be;. In clause (iv) of this subsection (c) the term “dividends or distributions paid in the ordinary course” shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of unitholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares Trust Units or a capital reorganization of the Corporation Trust other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation Trust with or into any other body corporate, trust, partnership person or other entity, ; or a sale or conveyance of the property and assets of the Corporation Trust as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallTrust, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale, conveyance, liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Trust Units then sought to be acquired by it, the number of Common Shares trust units, shares or other securities or property assets of the Corporation Trust or of the body corporate, trust, partnership person or other entity resulting from such mergerreclassification, capital reorganization, consolidation, amalgamation, arrangement or consolidationmerger, or to which such sale or conveyance may be mademade or which holders of Trust Units receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, sale sale, conveyance, liquidation, dissolution or conveyancewinding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares Trust Units sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors of the Administrator, on behalf of the Trust, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Trust, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any trust units, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable exercise of its conversion rights thereafter. Any indenture entered into between the Trust and the Debenture Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Trust, any successor to the Trust or such purchasing person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5 and which shall apply to successive reclassifications, capital reorganizations, consolidations, amalgamations, arrangements, mergers, sales or conveyances or to a liquidation, dissolution or winding-up.
(e) In any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date or effective datefor an event referred to herein, as the case Trust may bedefer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Trust Units issuable upon such conversion by virtue reason of the Principal Sum having then been converted into Common Shares at adjustment required by such event; provided, however, that the Trust shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Trust Units upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Trust Units declared in favour of holders of record of Trust Units on and after the Date of Conversion Price in effect on or such later date as such holder would, but for the applicable provisions of this Section 6.5(e), have become the holder of record or effective date, as the case may be;of such additional Trust Units pursuant to Section 6.4(b).
(f) the The adjustments provided for in this Section 7.1 6.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.16.5(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Trust Units outstanding, Trust Units owned by or for the benefit of the Trust shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question shall be conclusively determined by a firm of chartered accountants appointed by the Trust and acceptable to the Debenture Trustee (who may be the auditors of the Trust); such accountants shall have access to all necessary records of the Trust and such determination shall be binding upon the Trust, the Debenture Trustee, and the Debentureholders.
(i) In case the Trust shall take any action affecting the Trust Units other than action described in this Section 6.5, which in the opinion of the Directorsdirectors of the Administrator, on behalf of the provisions of this Section 7.1 are not strictly applicableTrust, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors of the Administrator, on behalf of the Trust, subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, as the directors of the Administrator, on behalf of the Trust, in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of the Holder Toronto Stock Exchange or such other exchange on which the Debentures are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in Sections 6.5(a), 6.5(b) or 6.5(c) other than the events described in 6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 6.5, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Trust Units at less than the Current Market Price for such Trust Units on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time as follows:
(a) if and whenever In case the Company shall, at any time during or from time to time while any of the Adjustment PeriodDebentures are outstanding, the Corporation shall:
(i) subdivide, redivide issue any shares of its capital stock as a dividend (or change other distribution) on its Common Stock; (ii) subdivide its outstanding shares of Common Shares Stock into a greater number of such shares; or
(iiiii) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; , or (iv) issue by reclassification of its Common Stock any shares of stock of the Company, the Conversion Price in effect immediately prior thereto shall be adjusted so that any Debentureholder who thereafter converts his Debenture shall be entitled to receive the number of shares of capital stock of the Company which he would have owned or have been entitled to receive after the happening of any of the events described above, had such Debenture been converted immediately prior to the happening of such event. Any adjustment made pursuant to this subdivision (a) shall become effective, in the case of a dividend, on the payment date retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders entitled to receive such dividend, subject to the provisions of subdivision (f) of this Section 13.5, and shall become effective date in the case of a subdivision, combination or reclassification immediately after the opening of business on the day following the day when such subdivision, redivision, change, reduction, combination or consolidationreclassification, as the case may be, shall in becomes effective.
(b) In case the case Company shall, at any time or from time to time while any of the events referred Debentures are outstanding, issue rights or warrants entitling anyone to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share of Common Stock (as defined in subdivision (id) abovebelow) at the Measurement Date (as defined below), be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on immediately prior to the issuance of such effective date rights or warrants shall be adjusted as follows: the number of shares of Common Stock into which each $1,000 principal amount of each authorized $5,000 denomination of Debentures was theretofore convertible shall be multiplied by a fraction fraction, the numerator of which the numerator shall be the total number of shares of Common Shares Stock outstanding immediately prior to such date issuance plus the number of additional shares of Common Stock offered for subscription or purchase, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of shares which the aggregate offering price of the total number of Common Shares outstanding immediately after shares so offered would purchase at such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if current market price; and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record by dividing $1,000 by the new number of shares into which each $1,000 principal amount of each authorized $5,000 denomination of Debentures shall be convertible as aforesaid. The term "Measurement Date" shall mean, with respect to determining current market price in connection with the issuance of rights or warrants to purchase Common Stock, the earlier of (i) the date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of upon which the numerator Company enters into a bona fide and binding agreement for the issuance of such rights or warrants and (ii) the issuance or grant thereof. Such adjustment shall be become effective on the total number date of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record dateissuance, less the fair market value (all as determined by the Directorsindependent certified public accountants then regularly auditing the accounts of the Company, subject to Section 7.4) of such rights, options or warrants, and of which the denominator whose determination shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconclusive, subject to the prior approval provisions of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
subdivision (f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.113.5.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: Indenture (Republic Bancshares Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
Trust shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares Units into a greater number of such shares; or
units, (ii) reduce, combine or consolidate its the outstanding Common Shares Units into a smaller number of such shares; units, or (iii) issue Units to the holders of all or substantially all of the outstanding Units by way of a dividend or distribution (other than the issue of Units to holders of Units who have elected to receive dividends or distributions in the form of Units in lieu of cash dividends or cash distributions paid in the ordinary course on the Units), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Units by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares Units resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares Units resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) subsection shall occur;. Any such issue of Units by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Units under subsections (b) and (c) of this Section.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation Trust shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling Units entitled to them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares Units (or securities convertible or exchangeable into Common SharesUnits) at a price per share unit (or having a conversion or exchange price per shareunit) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Unit on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Units outstanding on such record date multiplied plus a number of Units equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Units offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Unit, and of which the denominator shall be the total number of Common Shares Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Units offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares Units (or securities convertible or exchangeable into Common SharesUnits) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation Trust shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares Units of (i) shares units of any class, whether class other than Units and other than units distributed to holders of Units who have elected to receive dividends or distributions in the Corporation form of such units in lieu of dividends or any other corporation (including stock dividends)distributions paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Units or securities convertible into Units)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Units outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Unit on such record date, less the fair market value (as determined by the DirectorsTrust, subject to Section 7.4 with the approval of the Debenture Trustee, which determination shall be conclusive) of such shares, units or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares Units outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Unit. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares units or rights, options or warrants or evidences of indebtedness or assets actually distributed, were included in such fraction as the case may be;. In clause (iv) of this subsection the term "dividends or distributions paid in the ordinary course" shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of unitholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares Units or a capital reorganization of the Corporation Trust other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation Trust or a similar transaction with or into any other body corporate, trust, partnership Person or other entity, ; or a sale or conveyance of the property and assets of the Corporation Trust as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallTrust, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, amalgamation, arrangement, consolidation or merger, sale or conveyance or liquidation, dissolution or winding-up or such other similar transaction, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Units then sought to be acquired by it, the number of Common Shares Units, shares or other securities or property of the Corporation Trust or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, consolidation or consolidationsimilar transaction, or to which such sale or conveyance may be mademade or which holders of Units receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement consolidation or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up or such other similar transaction, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares Units, sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Trust, to give effect to or to evidence the Conversion Price;
(e) in any case in which Section 7.1(b) provisions of this subsection, the Trust, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, merger, sale or conveyance or liquidation, dissolution or winding-up or such other similar transaction, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any units, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable exercise of its conversion rights thereafter. Any indenture entered into between the Trust and the Debenture Trustee pursuant to the provisions of this subsection shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Trust, any successor to the Trust or such purchasing Person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this subsection and which shall apply to successive reclassifications, capital reorganizations, consolidations, mergers, sales or conveyances or other similar transactions.
(e) In any case in which this Section shall require that an adjustment shall become effective immediately after a record date or effective datefor an event referred to herein, as the case Trust may bedefer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Units issuable upon such conversion by virtue reason of the Principal Sum having then been converted into Common Shares at adjustment required by such event; provided, however, that the Trust shall deliver to such holder an appropriate instrument evidencing such holders right to receive such additional Units upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Units declared in favour of holders of record of Units on and after the Date of Conversion Price in effect on or such later date as such holder would, but for the applicable provisions of this subsection, have become the holder of record or effective date, as the case may be;of such additional Units pursuant to Section 6.4(b).
(f) the The adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; and provided further however, that any adjustments which by reason of this subsection are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Units outstanding, Units owned by or for the benefit of the Trust shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section, such question shall be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Trust and reasonably acceptable to the Debenture Trustee (who may be the auditors of the Trust); such accountants shall have access to all necessary records of the Trust and such determination shall be binding upon the Trust, the Debenture Trustee, and the Debentureholders (subject to manifest error).
(i) In case the Trust shall take any action affecting the Units other than action described in this Section, which in the opinion of the Directorsdirectors of the Administrator on behalf of the Trust, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors of the Administrator on behalf of the Trust, subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, as the directors of the Administrator on behalf the Trust, in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of the Holder Toronto Stock Exchange or such other exchange on which the Debentures are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in Sections 6.5(a), 6.5(b) or 6.5(c) other than the events described in 6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Units at less than the Current Market Price for such Units on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date time shall be subject to adjustment from time to time upon the happening of certain events, as follows:
(ai) if and whenever In case the Issuer shall at any time during after the Adjustment Perioddate hereof (1) declare or pay a dividend in shares of Common Stock or make a distribution of Common Stock, the Corporation shall:
(i2) subdivide, redivide or change subdivide its outstanding shares of Common Shares into a greater number of such shares; or
Stock, (ii3) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of shares of Common Stock or (4) issue any shares of its capital stock in a reclassification of Common Stock (including any such shares; reclassification in connection with a consolidation or merger in which the Conversion Price in effect on Issuer is the continuing entity), the number of shares of Common Stock purchasable upon conversion immediately prior thereto shall be adjusted so that the Holder of the Securities shall be entitled to receive the number shares of Common Stock or other securities of the Issuer which he would have owned or have been entitled to receive after the happening of any of the events described above, had conversion occurred immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (i) shall become effective immediately after the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion event retroactive to the number of outstanding Common Shares resulting from record date, if any, for such subdivision, redivision or change, or shall, in the case of the events referred to in event.
(ii) above, be increased in proportion to In case the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator Issuer shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during after the Adjustment Period, the Corporation shall fix a record date for the issuance of hereof issue rights, options or warrants to all or substantially all the holders of its outstanding Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable into Common Shares) Stock at a price per share which is lower at the record date mentioned below than the higher (or having a conversion or exchange A) of the market price per shareshare of the Common Stock (as defined in Section (v) less than the Twenty Day Weighted Average Trading Price on such record date, below) and (B) the Conversion Price Price, then the number of shares of Common Stock thereafter purchasable upon conversion shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date number of shares of Common Stock theretofore purchasable upon conversion by a fraction, of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such the record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject for determining stockholders entitled to Section 7.4) of receive such rights, options or warrantswarrants plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the denominator shall be the number of shares of Common Stock outstanding on the record date for determining stockholders entitled to receive such rights, options or warrants plus the number of shares which the aggregate offering price of the total number of shares of Common Shares outstanding on Stock so offered would purchase at the current market price per share of Common Stock at such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such date. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to issued, and shall become effective as of immediately after the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or for the determination of stockholders entitled to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of receive such rights, options or warrants, as the case may be;.
(ciii) if and whenever In case the Issuer shall at any time during after the Adjustment Period the Corporation shall fix a record date for the making of a distribution hereof distribute to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) Common Stock evidences of its indebtedness or (iv) assets (including cash) securities and cash dividends not paid out of funds legally available for the payment of dividends under the laws of the Corporationjurisdiction of incorporation of the Issuer or not made in the ordinary course of business), thenbut excluding dividends or distributions referred to in Section (i) above or rights or options or warrants referred to in Section (ii) above, then in each such case, case the Conversion Price number of shares of Common Stock thereafter purchasable upon conversion shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date number of shares of Common Stock theretofore purchasable upon conversion by a fraction, of which the numerator shall be then current market price per share of Common Stock (as defined in Section (v) below) on the date of such distribution, and of which the denominator shall be then current market price per share of Common Stock, less then fair value (as reasonably determined in good faith by the Board of Directors of the Issuer, whose reasonable determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights or securities or warrants applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to the record date for the determination o shareholders entitled to receive such distribution.
(iv) In case the Issuer shall at any time after the date hereof issue shares of Common Stock, or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock (excluding (A) shares, rights, options, warrants or convertible or exchangeable securities issued in any of the transactions described in Sections (i) through (iii) above and (B) 42,650 options contemplated to be issued to G & S Technologies, Inc., as described in Schedule 3.8 to the Exchange Agreement, a price per share of Common Stock (as determined in accordance with Section (v) below) that is lower than the higher of (A) the current market value per share of Common Stock (as determined in accordance with Section (v) below) on the date of such sale or issuance or on the date of the agreement for such sale or issuance (whichever is more) and (B) the Conversion Price, then in each case the number of shares of Common Stock thereafter purchasable upon conversion shall be increased by multiplying the number of shares of Common Stock theretofore purchasable upon the conversion by a fraction, the numerator of which shall be (I) the total number of shares of Common Shares Stock issuable in connection with such sale and issuance, and the denominator of which shall be (II) the number of shares of Common Stock that the aggregate consideration received (determined as provided below) for such sale or issuance would purchase at the higher of the prices referred to in (A) and (B) above. Such adjustment shall be made successively whenever such an issuance is made. For the purposes of such adjustments, the shares of Common Stock that the holder of such rights, options, warrants, or convertible or exchangeable securities shall be entitled to subscribe for or purchase shall be deemed to be issued and outstanding on as of the date of such record date multiplied sale and issuance and the consideration received by the Twenty Day Weighted Average Trading Price Issuer therefor shall be deemed to be the consideration received by the Issuer, plus the consideration or premiums stated in such rights, options, warrants or convertible or exchangeable securities to be paid for the shares of Common Stock covered thereby. In case the issuer shall sell and issue shares of Common Stock or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase Common Stock, for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the "price per share of Common Stock" and the "consideration received by the Issuer" for purposes of the first sentence of this Section (iv), the Board of Directors of the Issuer shall determine, on such record datea reasonable basis and in good faith, less the fair value of such property. In case the Issuer shall sell and issue rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock together with one or more other securities as part of a unit at a price per unit, then in determining the "price per share of Common Stock" and the consideration received by the Issuer for purposes of the first sentence of this Section (iv), the Board of Directors shall determine, on a reasonable basis and in good faith, the fair value of the rights, options, warrants or convertible or exchangeable securities then being sold as part of such unit.
(v) For the purpose of any computation under sections (ii) through (iv) above, the current market price per share of Common Stock at any date shall be the average of the current market value (of Common Stock for the 20 consecutive trading days commencing 30 trading days prior to such date; provided, that, if -------- ---- the Common Stock is not then publicly traded, the current market price per share shall be the average of the market value of the Common Stock of the last 20 consecutive trading days prior to the last day of trading; provided, however that such date is not earlier than 180 days prior to the date as of which such price is required to be determined, and otherwise such price shall be determined by an opinion of a nationally recognized independent investment bank selected by the Directorsmutual agreement of the Issuer and the Holder. In the case of rights, subject to Section 7.4 options, warrants or convertible or exchangeable securities, the price per share of Common Stock shall be determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the sale and issuance of such rights, options, warrants or convertible or exchangeable securities, plus the total consideration payable to the Issuer upon exercise or conversion or exchange thereof, by (y) the total number of shares of Common Stock covered by such rights, options, warrants or convertible or exchangeable securities.
(vi) No adjustment in the number of shares of Common Stock convertible hereunder shall be required unless such adjustment would result in an increase or decrease of at least one percent (1%) of the number of shares of Common Stock for which shares of the Securities are convertible; provided, that any adjustments -------- ---- which by reason of this Section (vi) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. Whenever an adjustment shall be made pursuant to (i) through (v) above, the Conversion Price shall be adjusted accordingly. All calculations shall be made to the nearest one-thousandth of a share.
(vii) No adjustment in the number of shares of Common Stock received upon conversion need be made under Sections (ii) through (iv) above if the Issuer issues or distributes to the Holder of the Securities shares of Common Stock, the shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in those Sections which such ▇▇▇▇▇▇ would have been entitled to receive had this conversion not occurred prior to the happening of such event or the record date with respect thereto.
(viii) For the purpose of this Section 7.1(c)8, the term "shares of Common Stock" shall mean (i) Common Stock of the Issuer, or (ii) any other class of stock resulting from successive changes or reclassifications of such shares consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. In the event that at any time, as a result of an adjustment made pursuant to clause (ii) above, the Holders shall become entitled to receive any securities of the Issuer other than shares of Common Stock, thereafter the number of such other shares so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in Section (i) through (iv) above, and the other provisions of this Section 8 shall apply on like terms to any such other securities.
(ix) Except as provided in Sections (i) through (iii) above, no adjustment in respect of any dividends shall be made during the term of the Securities or upon the conversion of the Securities.
(x) Upon the expiration of any rights, options, warrants or conversion or exchange privileges with respect to which an adjustment shall have been made pursuant to Section (ii) or (iv) above, if any rights, options, warrants or conversion or exchange privileges thereof have not been exercised, the number of shares of Common Stock purchasable upon conversion will, upon such expiration, be readjusted and will thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not been required, as the case may be) as if (i) the only shares of Common Stock so issued were the shares of Common Stock, if any, actually issued or sold upon the exercise of such rights, options or warrants or conversion or exchange rights and (ii) such shares of Common Stock, if any, were issued or sold for the consideration actually received by the Issuer upon such exercise, conversion or exchange plus the aggregate consideration, if any actually received by the Issuer for the issuance, sale or grant of all such rights, options or warrants, whether or not exercised. Whenever the number of shares purchasable upon conversion shall be adjusted as required by the provisions of this Section 8, the Issuer shall forthwith file in the custody of its Secretary or an Assistant Secretary at its principal office and with its stock transfer agent, if any, an officers' certificate showing the adjusted number of shares determined as herein provided, setting forth in reasonable detail the facts requiring such adjustment and the manner of computing such adjustment. Each such officers' certificate shall be signed by the chairman, president or chief financial officer of the Issuer and by the secretary or any assistant secretary of the Issuer. Each such officers' certificate shall be made available at all reasonable times for inspection by any holder of shares of the Securities and the Issuer shall, forthwith after each such adjustment, mail a copy, by first-class mail, of such certificate to the each of the Holders. 9. Reclassification, Reorganization, Consolidation or Merger --------------------------------------------------------- In case of any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the Issuer (other than a subdivision or combination of the outstanding Common Stock and other than a change in the par value of Common Stock) or in case of any consolidation or merger of the Issuer with or into another corporation (other than a merger with a subsidiary in which merger the Issuer is the continuing corporation and that does not result in any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the class issuable upon conversion) or in case of any sale, lease, transfer or conveyance to another corporation of the property and assets of the Issuer as an entirety or substantially as an entirety, the Issuer shall, as a condition precedent to such transaction, cause effective provisions to be made so that the Holder shall have the right thereafter, by converting such ▇▇▇▇▇▇'s shares of the securities, to receive in lieu of the receipt of shares of Common Stock the kind and number as it would have received if it had been amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, capitalization, reorganization and other change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Shares on the applicable record date Stock that would have been received upon conversion immediately prior to such reclassification, capitalization, reorganization, change, consolidation, merger, sale or effective date, conveyance. Any such provision shall include provision for adjustments in respect of such shares of stock and other securities and property that shall be as the case nearly equivalent as may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) be practicable to the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case Security. The foregoing provisions of adjustments to the Conversion Price be computed to the nearest whole cent and this paragraph shall similarly apply to successive subdivisionsreclassifications, redivisions, reductions, combinations, capital reorganizations and changes of shares of Common Stock and to successive consolidations, distributionsmergers, issues sales or conveyances. In the event that in connection with any such capitalization reorganization or reclassification, consolidation, merger, sale or conveyance, additional shares of Common Stock shall be issued in exchange, conversion, substitution or payment, in whole or in part, for, or of, a security of the Issuer other events resulting in than Common Stock, any adjustment under such issue shall be treated as an issue of Common Stock covered by the provisions of this Paragraph (iv) of Section 7.18.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: 12% Senior Subordinated Convertible Note (Soros Fund Management LLC)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during If the Adjustment Period, the Corporation shall:
Company shall (i) subdividepay a dividend or other distribution, redivide in Common Stock, on any class of Capital Stock of the Company or change its any Subsidiary which is not wholly owned by the Company, (ii) subdivide the outstanding Common Shares Stock into a greater number of such shares; or
shares by any means or (iiiii) reduce, combine or consolidate its the outstanding Common Shares Stock into a smaller number of shares by any means (including, without limitation, a reverse stock split), then in each such shares; case the Conversion Price in effect on immediately prior thereto shall be adjusted so that the Holder of any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock that such Holder would have owned or have been entitled to receive upon the happening of such event had such Debenture been converted immediately prior to the relevant record date or, if there is no such record date, the effective date of such subdivision, redivision, change, reduction, combination event. An adjustment made pursuant to this Section 10.4(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or consolidationdistribution and shall become effective immediately after the effective date of such subdivision or combination, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;.
(b) if and whenever at any time during If the Adjustment Period, the Corporation Company shall fix a record date for the issuance of rights, options (i) issue or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares distribute (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price per share of such Capital Stock on the date of such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number issuance or distribution) Capital Stock generally to holders of Common Shares outstanding on Stock or to holders of any class or series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (excluding an issuance or distribution of Common Stock described in Section 10.4(a)) or (ii) issue or distribute generally to such record date multiplied by the Twenty Day Weighted Average Trading Price on such record dateholders rights, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rightswarrants, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable securities entitling the holder thereof to subscribe for, purchase, convert into Common Shares) actually issued upon or exchange for Capital Stock at a price per share less than the exercise Current Market Price per share of such rights, options Capital Stock on the date of issuance or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporationdistribution, then, in each such case, at the earliest of (A) the date the Company enters into a firm contract for such issuance or distribution, (B) the record date for the determination of stockholders entitled to receive any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities or (C) the date of actual issuance or distribution of any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined reduced by multiplying the Conversion Price in effect on immediately prior to such record earliest date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided thatby:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: Indenture (Lomak Petroleum Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time by the Issuer as follows:
(a) if and whenever at any time during If the Adjustment PeriodIssuer pays a dividend, or makes a distribution on outstanding Common Shares, in Common Shares, the Corporation shall:Conversion Price in effect immediately prior to the record date for the determination of shareholders entitled to receive such dividend or other distribution shall be decreased so that the same shall equal the price determined by the Issuer by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the number of Common Shares outstanding at the close of business on such record date and of which the denominator shall be the sum of the number of Common Shares outstanding at the close of business on such record date plus the total number of Common Shares constituting such dividend or other distribution. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. If any dividend or distribution of the type described in this clause is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(ib) subdivide, redivide or change If the Issuer subdivides its outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate combines its outstanding Common Shares into a smaller number of such shares; , the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion immediately prior to the number of outstanding Common Shares resulting from day upon which such subdivision, redivision subdivision or change, or shallcombination becomes effective shall be, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number subdivision of Common Shares outstanding immediately prior to such date and Shares, proportionately decreased and, in the denominator shall be the total number case of a combination of Common Shares outstanding immediately after such dateShares, proportionately increased. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) such subdivision or combination of the Common Shares occurs and shall occur;become effective immediately after the date upon which such subdivision or combination becomes effective.
(bc) if and whenever at any time during If the Adjustment Period, the Corporation shall fix Issuer fixes a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, them (for a period expiring not more than 45 within forty-five (45) days after such record date, issuance) to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than ninety-five percent (95%) of the Twenty Day Weighted Average Trading then Current Market Price per Common Share on the record date for the determination of shareholders entitled to receive such record daterights, options or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, of which the numerator shall be the number of Common Shares outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of Common Shares outstanding so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of Common Shares issuable upon conversion of such convertible securities by the conversion price per Common Share pursuant to the terms of such convertible securities) would purchase at the Current Market Price per Common Share on such record date multiplied by and of which the Twenty Day Weighted Average Trading Price denominator shall be the number of Common Shares outstanding at the close of business on such record date plus the number of additional Common Shares that such rights, options or warrants entitle holders thereof to subscribe for or purchase (or into which such convertible securities are convertible). Such adjustment shall be made successively whenever any such rights, options or warrants (or convertible securities) are issued, and shall become effective immediately after such record date. To the extent that Common Shares (or securities convertible into Common Shares) are not delivered after the expiration of such rights, options or warrants, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the specific number of Common Shares (or securities convertible into Common Shares) actually delivered. If such rights, options or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if the record date for the determination of shareholders entitled to receive such rights, options or warrants had not been fixed. In determining whether any rights, options or warrants entitle the shareholders to subscribe for or purchase Common Shares at a price less than ninety-five percent (95%) of the then Current Market Price per Common Share and in determining the aggregate offering price of the total number of Common Shares so offered, there shall be taken into account any consideration received by the Issuer 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.
(d) If the Issuer pays a dividend or other distribution to all or substantially all holders of its Common Shares consisting of evidences of Indebtedness or other assets of the Issuer, including securities (excluding: (i) any issuance of rights, options or warrants for which an adjustment was made pursuant to subsection 8.1(c); (ii) dividends or distributions in connection with a reclassification, consolidation, merger, combination, sale or conveyance resulting in a change in the conversion consideration pursuant to section 8.5, or pursuant to any Rights Plan; or (iii) any dividend or distribution paid in Common Shares for which an adjustment was made pursuant to subsection 8.1(a)) (the “Distributed Securities”), then in each such case the Conversion Price in effect immediately prior to the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the Current Market Price per share on such record date less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to Section 7.4the prior approval of the TSX, and which shall be evidenced by an Officers’ Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such rights, options or warrants, record date) and of which the denominator shall be the total number of Current Market Price per Common Shares outstanding Share on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such date. Such adjustment shall be made successively whenever any such a distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is fixed;not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. The Issuer shall not make a distribution of Distributed Securities if the fair market value (as so determined) of the portion of the proposed Distributed Securities applicable to one (1) Common Share would be equal to or greater than the Current Market Price per Common Share on the applicable record date. Notwithstanding the foregoing, if the securities distributed by the Issuer to all holders of its Common Shares consist of common shares of, or similar equity interests in, a Subsidiary or other business unit of the Issuer (the “Spinoff Securities”), the Conversion Price shall be adjusted so that the same shall be equal to the price determined by multiplying the Conversion Price in effect on the record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the numerator of which shall be the VWAP per Common Share during the five (5) consecutive Trading Days commencing on and including the fifth (5th) Trading Day after the date on which ex-dividend trading commences for such distribution on the TSX or such other Recognized Stock Exchange on which the Common Shares are then listed or quoted (the “Spinoff Valuation Period”), and the denominator of which shall be the sum of (A) the VWAP per Common Share (including, as applicable, ex- dividend Common Shares trading on a “when-issued” basis) during the Spinoff Valuation Period and (B) (i) the VWAP per Spinoff Security during the Spinoff Valuation Period (including, as applicable, Spinoff Securities trading on a “when-issued” basis) or, if no such prices are available, the fair market value of a Spinoff Security as reasonably determined by the Board of Directors in its sole discretion (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share, such adjustment to become effective immediately prior to the opening of business on the tenth (10th) Trading Day after the date on which ex- dividend trading commences.
(iiie) With respect to any rights or warrants to acquire Common Shares (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Issuer proposes to implement after the date of this Indenture (a “Rights Plan”), such Rights Plan must provide that such Rights attach to all Common Shares issued after the date of the Rights Plan provided that, if, at the time of conversion, however, the Rights have already separated from the Common Shares in accordance with the provisions of the Rights Plan so that Holders would not be entitled to receive any rights in respect of the Common Shares issuable upon conversion of the Debentures as a result of the timing of the Conversion Date, the Conversion Price will be adjusted as if the Issuer had distributed to all holders of Common Shares Distributed Securities constituting such rights as provided in the first paragraph of subsection 8.1(d), subject to the extent that any such deferral rights of the Issuer provided in the second paragraph of subsection 8.1(f) and to appropriate readjustment in the event of the expiration, termination, repurchase or redemption of the Rights. Any distribution of Rights pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not otherwise constitute a distribution of rights, options or warrants pursuant to this Article 8. Other than as specified in this subsection 8.1(e), there will not be any adjustment to the Conversion Price as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights.
(f) Notwithstanding the foregoing, whenever successive adjustments to the Conversion Price are not exercised called for pursuant to this section 8.1, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this section 8.1 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors and evidenced by an Officers’ Certificate delivered to the Trustee. In any case in which this section 8.1 shall require that an adjustment be made following a record date established for the purposes specified in this section 8.1, the Issuer may elect to defer (but only until five (5) Business Days following the filing by the Issuer with the Trustee of the certificate described in section 8.3 in respect of the event for which the adjustment is required) issuing to the Holder of any Debenture converted after such record date, the Common Shares of the Issuer issuable upon such conversion over and above the Common Shares (or other cash, property or securities, as applicable) issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of any cash, property or securities the expiration thereofissuance of which is so deferred, the Issuer shall issue or cause its Transfer Agent to issue due bills or other appropriate evidence prepared by the Issuer of the right to receive such cash, property or securities. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date therefor is not thereafter made or paid by the Issuer for any reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1occurred.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: Indenture
Adjustment of Conversion Price. (a) The Conversion Price applicable to any conversion of this Note into Conversion Shares pursuant to Section 7.1 above shall be subject to appropriate adjustments to reflect stock splits (forward and reverse), stock dividends, combinations, mergers, reorganizations and other fundamental capitalization changes after the date hereof (other than issuance of the Company's capital stock pursuant to the exercise of outstanding options and warrants).
(b) Except for (i) the grant of options or warrants to purchase Common Stock to employees, directors or consultants of the Company, or pursuant to the Company's Employee Stock Purchase Plan or other similar incentive plan, as approved from time to time by the Company's Board of Directors or a committee thereof, and the issuance of shares of Common Stock pursuant to the exercise of such options or warrants; (ii) the issuance of shares of Common Stock pursuant to the exercise of options or warrants outstanding prior to the original issuance of this Note that were approved by the Company's Board of Directors or a committee thereof; and (iii) the issuance of shares of Common Stock pursuant to the acquisition of a business or stock of another entity or person, which is approved by the Company's Board of Directors or a committee thereof, if and whenever the Company shall issue or sell any shares of its Common Stock for a consideration per share less than the Conversion Price in effect at any date immediately prior to the time of such issuance or sale, then, forthwith upon such issue or sale, the Conversion Price shall be subject reduced to such lesser price. No such adjustment from time to time as follows:
(a) if and whenever at any time during of the Adjustment PeriodConversion Price, the Corporation shall:
(i) subdividehowever, redivide or change its outstanding Common Shares into a greater number shall be made in an amount less than 2% of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price in effect on the effective date of such subdivisionadjustment, redivisionbut any such lesser adjustment shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, changeif any, reduction, combination or consolidation, as the case may betogether with any such adjustment so carried forward, shall in the case be an amount equal to or greater than 2% of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price then in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1effect.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Sources: Convertible Promissory Note (Cardiff International Inc)
Adjustment of Conversion Price. The Subject to the requirements of any exchange on which the Debentures are then listed, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend in the ordinary course, distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), or otherwise, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares, provided that the Conversion Price so adjusted is not less than $2.42, which represents the Market Price of the Common Shares on the TSXV at closing on February 11, 2013, the date prior to the date the Offering was announced, in accordance with the policies of the TSXV. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of such right thereafter, shall, subject to the Conversion Rightimmediately following paragraph, be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 14. Any indenture entered into between the Corporation, any successor to the Corporation or effective datesuch purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or any payment in connection therewith in accordance with Section 2.4, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10. Notwithstanding any other provision in this Indenture or in the form of any Debenture, if a holder would otherwise become entitled to receive, upon conversion of a Debenture, any property or securities (herein, "Ineligible Consideration") that would not constitute prescribed securities for the purposes of Section 212(1)(b)(vii)(E) of the Tax Act as it applied on December 31, 2007 ("Prescribed Securities"), such holder shall not be entitled to receive such Ineligible Consideration upon conversion of the Debenture, but shall instead be entitled to receive Prescribed Securities of the Corporation (or a successor, as the case may be) with a fair market value equal to the fair market value of such Ineligible Consideration, as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer's Certificate delivered to the Trustee); provided, however, that the Corporation or a successor, as the case may be, by virtue shall have the right (at the sole option of the Principal Sum having Corporation or the successor, as the case may be) but not the obligation to deliver such Ineligible Consideration to the holder upon the conversion of the Debenture in lieu of such Prescribed Securities. At least 30 days prior to the effective date of a transaction that would otherwise cause holders of Debentures to become entitled to receive Ineligible Consideration upon a conversion of the Debentures, the Corporation will give notice to such holders of the consideration into which the Debentures will be convertible following such transaction.
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c) and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the "Distributed Securities"), then been in each such case (unless the Corporation at its option chooses to distribute such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price for the Common Shares immediately prior to the record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the Trustee, all subject to the approval of the TSXV, if required) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation at its option chooses to make an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSXV, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers' Certificate delivered to the Trustee but shall be subject to the approval of the TSXV, if required) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) the adjustments provided for In any case in which this Section 7.1 are cumulative6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, and shallthe Corporation may defer, in until the case occurrence of adjustments such event, issuing to the Conversion Price be computed to holder of any Debenture converted after such record date and before the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under occurrence of such event the provisions of this Section 7.1.
(g) if, in the opinion additional Common Shares issuable upon such conversion by reason of the Directorsadjustment required by such event before giving effect to such adjustment; provided, however, that the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares upon the rights occurrence of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.event req
Appears in 1 contract
Sources: Convertible Debenture Indenture (Crailar Technologies Inc)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price in effect at any date Price") shall be subject to adjustment from time to time as follows:
(a) if and whenever at In case the Company shall (l) make or pay a dividend or make a distribution in shares of Common Stock on any time during class of Capital Stock of the Adjustment PeriodCompany, the Corporation shall:
(i2) subdivide, redivide or change subdivide its outstanding shares of Common Shares Stock into a greater number of such shares; or
shares or (ii3) reduce, combine or consolidate reclassify its outstanding shares of Common Shares Stock into a smaller number of such shares; , the Conversion Price in effect on immediately prior to such action shall be adjusted so that the holder of any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Debenture been converted immediately prior thereto. An adjustment made pursuant to this subsection (a) shall become effective immediately, except as provided in subsection (h) below, after the record date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of a dividend or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination a subdivision or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;combination.
(b) if and whenever at any time during In case the Adjustment Period, the Corporation Company shall fix a record date for the issuance of issue rights, options or warrants to all or substantially all the holders of its outstanding Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares (or securities convertible or exchangeable into Common Shares) Stock at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) on such the record datedate mentioned below, the Conversion Price shall be adjusted immediately after such record date to a price, computed to the nearest cent, so that it the same shall equal the amount price determined by multiplying multiplying:
(i) the Conversion Price in effect on immediately prior to the date of issuance of such record date rights, options, warrants or other convertible or exchangeable securities by a fraction, of which which
(ii) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such rights, options, warrants or other convertible or exchangeable securities, immediately prior to such issuance, plus (B) the number of shares which the aggregate offering price of the total number of shares so offered for subscription, purchase or other acquisition would purchase at such current market price (determined by multiplying such total number of shares by the exercise price of such rights, options, warrants or other convertible or exchangeable securities (which exercise price shall be the amount of cash consideration delivered by the holder thereof upon exercise, but shall not include the value of, or the amount of the obligation of the Company under, such right, option, warrant or other convertible or exchangeable security) and dividing the product so obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of shares of Common Shares Stock outstanding on the date of issuance of such rights, options, warrants or other convertible or exchangeable securities, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock which are so offered for subscription, purchase or other acquisition. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date multiplied by for the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject determination of holders entitled to Section 7.4) of receive such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;.
(c) if and whenever at In case the Company or any time during subsidiary of the Adjustment Period the Corporation Company shall fix a record date for the making of a distribution distribute to all or substantially all the holders of Common Stock, any of its outstanding Common Shares of (i) shares of any classassets, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness indebtedness, cash or securities other than Common Stock (other than (x) dividends or distributions exclusively in cash or (ivy) assets any dividend or distribution for which an adjustment is required to be made in accordance with subsection (including cashb) of the Corporation, then, above) then in each such case, case the Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to the date of such record date distribution by a fraction, fraction of which the numerator shall be the total number then current market price per share of the Common Shares outstanding Stock (determined as provided in subsection (f) below) on such the record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, mentioned below less the then fair market value (as reasonably determined in good faith by the Directors, subject to Section 7.4 Board of such shares, rights, options, warrants, evidences Directors of indebtedness or the Company) of the portion of the assets so distributeddistributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the total number Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided Stock in an aggregate amount that:
, combined together with (i) Common Shares owned by or held for all other such all-cash distributions made within the account then preceding 12 months in respect of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its subsidiaries for Common Stock (any such tender offer being referred to as an "Offer") concluded within the preceding 12 months in respect of which no adjustment shall be made successively whenever such a has been made, exceeds 12.5% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (e) below) times the number of shares of Common Stock then outstanding) on the record date is fixed;
(iii) to the extent that of such distribution is not so madedistribution, in each such case the Conversion Price shall be readjusted to adjusted so that the same shall equal the price determined by multiplying the Conversion Price which would then be in effect if immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date had less the amount of the cash and the fair market value of the other consideration so distributed within such preceding 12 months applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(e) In case the Company or any subsidiary of the Company shall complete an Offer that involves an aggregate consideration that, together with (i) any cash and other consideration paid or payable in an Offer that expired within the 12 months preceding the expiration of such Offer in respect of which no adjustment has been made and (ii) the aggregate amount of all other all-cash distributions made within the 12 months preceding the expiration of such Offer in respect of which no adjustment has been made (other than all-cash distributions made upon a merger or consolidation to which Section 13.6 applies), exceeds 12.5% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the expiration of such Offer, in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of the commencement of such tender offer by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such commencement date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately upon the consummation of the Offer.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not been fixed more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "`ex' date", with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of Last Sale Price in Section 13.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Company, shall be used. For purposes of this paragraph, the term "`ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the NASDAQ National Market System (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock.
(h) In any case in which this Section 13.5 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date 69 later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Debenture converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 13.3 hereof or issuing to the Holder of such Debenture the number of shares of Common Stock and other capital stock of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment, and (ii) not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; PROVIDED, that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XIII shall be made to the nearest cent or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences nearest one-hundredth of indebtedness or assets actually distributeda share, as the case may be;.
(dj) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at Whenever the Conversion Price in effect on is adjust- ed as herein provided, the applicable record or effective date, as Company shall promptly (i) file with the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, Trustee and shall, in the case of adjustments to each conversion agent an Officers' Certificate setting forth the Conversion Price be computed to the nearest whole cent after such adjustment and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion setting forth a brief statement of the Directorsfacts requiring such adjustment, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights which certificate shall be conclusive evidence of the Holder in accordance with correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Debentures at his address as the intent and purposes hereof, same appears on the Directors shall make any adjustment in such provisions for the benefit registry books of the Holder as the Directors deem appropriateCompany.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the applicable Conversion Price in effect on the effective date of such subdivision, redivision, changere- division, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision re-division or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 5.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the applicable Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the applicable Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the applicable Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) prior to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences Time of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment PeriodExpiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.5(a) or a consolidation, amalgamation, arrangement or arrangement, share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 5.5(l). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 5.5(c), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.5(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 13. Any indenture entered into between the Corporation, any successor to the Corporation or such kind purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.5(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 5.5(c) shall affect or reduce the requirement for any Person to make an offer to purchase the Debentures following a Change of Control, and notice of any transaction to which this Section 5.5(c) applies shall be given in accordance with Section 5.10.
(d) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 5.5(b) and (ii) any dividend or distribution paid exclusively in cash (the “Distributed Securities”), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the applicable Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the applicable Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the CSE (or such other recognized stock exchange on which the Common Shares are listed for trading) and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the applicable Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as it so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (d) of Section 5.5 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares.
(e) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided below) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it had may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the applicable Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the applicable Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by Applicable Law from effecting any or all such purchases or any or all such purchases are rescinded, the applicable Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, if any. If the application of this clause ( e ) of Section 5.5 to any issuer bid would result in a decrease in the applicable Conversion Price, no adjustment shall be made for such issuer bid under this clause (e). For purposes of this Section 5.5(e), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(f) In any case in which this Section 5.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.5(f), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.4(2).
(fg) the The adjustments provided for in this Section 7.1 5.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisionsre-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) ifSection, provided that, notwithstanding any other provision of this Section, no adjustment of the applicable Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the opinion of the Directorsapplicable Conversion Price then in effect; provided however, the provisions that any adjustments which by reason of this Section 7.1 5.5(g) are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder required to be made shall be carried forward and taken into account in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.subse
Appears in 1 contract
Sources: Secured Trust Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a7.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 7.5.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a7.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 7.5(m). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 7.5(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 7.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 17. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 7.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. The Corporation shall not become a party to any Merger Event unless its terms are consistent with this Section 7.5(d).
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 7.5(c), and (ii) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 7.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation at its option chooses to distribute such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the five-day VWAP immediately prior to the ex-distribution date and of which the numerator shall be the five-day VWAP for the first five trading days that occur immediately post the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately after the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spin-off Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spin-off Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSX (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spin-off Valuation Period of the Spin-off Securities or, if no such prices are available, the fair market value of the Spin-off Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spin-off Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spin-off Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spin-off Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this Section 7.17.5(f) to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this Section 7.5(f). For purposes of this Section 7.5(f), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(g) if, In any case in the opinion of the Directorswhich this Section 7.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the provisions Corporation may defer, until the occurrence of this Section 7.1 are not strictly applicablesuch event, or if strictly applicable would not fairly protect issuing to the rights holder of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.Debenture converted after s
Appears in 1 contract
Sources: Indenture (Canopy Growth Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Common Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Common Shares, or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends in the form of Common Shares in lieu of cash dividends paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend shall, as the case may be, shall in the case of any of the events referred to in (i) and (iii) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend shall be deemed to have been made on the record date for the dividend for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares (other than for the issue of Common Shares to holders of Common Shares who have elected to receive dividends in the form of Common Shares in lieu of cash dividends paid in the ordinary course on the Common Shares) entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record datedate (other than pursuant to a dividend reinvestment plan of the Corporation), the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making paying of a distribution dividend to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether class other than Common Shares and other than shares distributed to holders of Common Shares who have elected to receive dividends in the Corporation or any other corporation (including stock dividends)form of such shares in lieu of dividends paid in the ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible into Common Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the DirectorsCorporation, subject to Section 7.4 with the approval of the Debenture Trustee, which determination shall be conclusive) of such shares, rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution dividend is not so madedeclared, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;. In clause (iv) of this subsection (c) the term "dividends paid in the ordinary course" shall include the value of any securities or other property or assets distributed in lieu of cash dividends paid in the ordinary course at the option of shareholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(asubsection 6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership Person or other entity, ; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of such right thereafter (and subject to the Conversion Rightrights of the Corporation pursuant to subsection 2.4(k)(vi) hereof), shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such mergerreclassification, capital reorganization, consolidation, amalgamation, arrangement or consolidationmerger, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. Notwithstanding the foregoing, if, prior to the Conversion Price;
date that is five years plus one day from the last date of original issuance of each of the Debentures, holders of Debentures would otherwise be entitled to receive, upon conversion of any Debentures, any property (e) in any case in which Section 7.1(bincluding cash) or 7.1(csecurities that would not constitute "prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) require that an adjustment of the Tax Act ("ineligible consideration"), such holders shall not be made entitled to receive such ineligible consideration but the Conversion PriceCorporation, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) its successor or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)acquiror, as the case may be, in shall have the right (at the sole option of the Corporation, or its successor or acquiror, as the case may be,) to deliver either such kind and number as it would have received if it had been ineligible consideration or "prescribed securities" for the purposes of clause 212(1)(b)(vii)(E) of the Tax Act with a holder market value equal to the market value of Common Shares on such ineligible consideration. If determined appropriate by the applicable record date Corporation to give effect to or effective dateto evidence the provisions of this subsection 6.5(d), the Corporation, its successor, or such purchasing Person or other entity, as the case may be, by virtue shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up or other similar transaction, enter into an indenture which shall provide, to the extent possible, for the application of the Principal Sum having then been provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any shares or other securities or property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this subsection 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this subsection 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, consolidations, amalgamations, mergers, sales or conveyances and to any successive liquidation, dissolution or winding up or other similar transaction;
(e) In any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted into after such record date and before the occurrence of such event the additional Common Shares at issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends on such additional Common Shares declared in favour of holders of record of Common Shares on and after the Date of Conversion Price in effect on or such later date as such holder would, but for the applicable provisions of this subsection 6.5(e), have become the holder of record or effective date, as the case may be;of such additional Common Shares pursuant to subsection 6.4(b).
(f) the The adjustments provided for in this Section 7.1 6.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this subsection 6.5(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. For greater certainty, there will be no adjustment of the Conversion Price in respect of any event described in this Section 7.16.5 if Debentureholders are allowed to participate as though they had converted their Debentures prior to the applicable record date or effective date and any relevant stock exchange has approved such participation.
(g) ifFor the purpose of calculating the number of Common Shares outstanding, Common Shares owned by or for the benefit of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question shall be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Corporation and acceptable to the Debenture Trustee (who may be the auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Debenture Trustee, and the Debentureholders.
(i) In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 6.5, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall make any adjustment be adjusted in such provisions for the benefit manner and at such time, by action of the Holder Directors, subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, as the Directors deem appropriatein their sole discretion may determine to be equitable in the circumstances. Failure of the Directors to make such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in the circumstances.
(j) Subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in subsections 6.5(a), 6.5(b) or 6.5
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Shares, or (iii) issue Shares or securities convertible into or exchangeable for Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than pursuant to any distribution reinvestment or Share purchase plans or similar arrangements), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution (including, in the case where securities convertible into or exchangeable for Shares are distributed, the number of Shares that would have been outstanding had all such securities been exchanged for or converted into Shares on such effective date or record date), or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.4(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under Subsections (b) and (c) of this Section 6.4.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share Share (or having a conversion or exchange price per shareShare) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus that number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Twenty Day Weighted Average Trading Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Shares offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Shares (other than pursuant to any distribution re-investment or any other corporation (including stock dividendsshare purchase plans or similar arrangements), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Shares or securities convertible or exchangeable into Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) other assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Share on such record date, less the fair market value (as determined by an Investment Dealer chosen by the DirectorsCorporation, subject to Section 7.4 which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.4(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership Person or other entity, or a sale or conveyance of the property Property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entity, or a liquidation, dissolution or winding up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding up enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly equivalent as may be practicable, with respect to any shares or other securities or property to which a holder of Common Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances or other similar transactions.
(e) In any case in which this Section 6.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends or distributions made on such additional Shares declared in favour of holders of record of Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 6.4(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common such additional Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 6.4(b).
(f) the The adjustments provided for in this Section 7.1 6.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.16.4(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Shares outstanding, Shares owned by or for the benefit of the Corporation or any Subsidiary of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.4, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation (who may be the Auditor); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Trustee, and the Debentureholders (subject to manifest error).
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Section 6.4, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable directors would not fairly protect materially adversely affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors, subject to the prior written consent of the TSX, as the directors in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that the directors have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of the Holder TSX, no adjustment in the Conversion Price shall be made in respect of any event described in Section 6.4(a), Section 6.4(b) or Section 6.4(c) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 6.4, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Shares at less than the Current Market Price for such Shares on the date of issuance.
Appears in 1 contract
Sources: Indenture (Kirkland Lake Gold Ltd.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Shares or Securities convertible into Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than the issue of Shares to holders of Shares who have elected to receive dividends or distributions in the form of Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or change, distribution or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
plus the total number of additional Shares offered for subscription or purchase (i) Common Shares owned by or held for into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based if only the number of Shares (or securities convertible into Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(dc) if If and whenever at any time during prior to the Adjustment Period, there is a reclassification Time of the Common Shares or a capital reorganization of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Shares of (i) shares of any class other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger Shares and other than shares distributed to holders of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled Shares who have elected to receive and shall accept, dividends or distributions in the form of such shares in lieu of the number of shares then sought to be acquired by it, the number of Common Shares dividends or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, distributions paid in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.ordinary course,
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the approval of the TSX, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Common Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Common Shares, or (iii) issue Common Shares or securities convertible into or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than pursuant to any distribution re-investment or share purchase plans or similar arrangements), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution (including, in the case where securities convertible into or exchangeable for Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date), or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.4(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under Subsections (a) and (c) of this Section 6.4.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus that number of Common Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Twenty Day Weighted Average Trading Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Common Shares (other than pursuant to any distribution re-investment or any other corporation (including stock dividendsshare purchase plans or similar arrangements), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible or exchangeable into Common Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) other assets (including cashcash dividends or distributions paid in the ordinary course in an amount greater than $0.035 per Common Share per fiscal quarter) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by an Investment Dealer chosen by the DirectorsCorporation, subject to Section 7.4 which determination shall be conclusive) of such shares, Common Shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares Common Shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;. Notwithstanding the foregoing, in respect of determining the fair market value of any cash dividends or distributions paid by the Corporation in the ordinary course in an amount greater than $0.035 per Common Share per fiscal quarter, the Corporation shall not be required to retain an Investment Dealer to determine the fair market value of the same, but rather the Corporation, acting reasonably and in good faith, shall be entitled to make its own determination thereof.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.4(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership Person or other entity, or a sale or conveyance of the property Property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entity, or a liquidation, dissolution or winding up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of trust Common Shares Shares, shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Trust Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Trust Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any trust Common Shares, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this Section 6.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances or other similar transactions.
(e) In any case in which this Section 6.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 6.4(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 6.3(b).
(f) the The adjustments provided for in this Section 7.1 6.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.16.4(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) if, in For the opinion purpose of calculating the number of Common Shares of the DirectorsCorporation outstanding, the provisions of this Section 7.1 are not strictly applicable, Common Shares owned by or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder Corporation or any Subsidiary shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.4, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation (who may be the Auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Debenture Trustee, and the Debentureholders (subject to manifest error).
(i) In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 6.4, which in the reasonable opinion of the directors would materially adversely affect the rights of Debentureholders, the Conversion Price shall be adjusted in such manner and at such time, by action of the directors, subject to the prior written consent of the TSX, as the Directors deem appropriatedirectors in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make such an adjustment shall be conclusive evidence that the directors have determined that it is equitable to make no adjustment in the circumstances.
(j) Subject to the prior written consent of the TSX, no adjustment in the Conversion Price shall be made in respect of any event described in Sections 6.4(a), 6.4(b) or 6.4(c) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event.
(k) Except as stated above in this Section 6.4, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the Current Market Price for such Common Shares on the date of issuance.
Appears in 1 contract
Sources: Trust Indenture (Wi-Lan Inc.)
Adjustment of Conversion Price. (a) The Conversion Price in effect at any date shall will be subject to adjustment from time to time in the events and in the manner provided as follows:.
(ab) if If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Time of Expiry, the Corporation shallCorporation:
(i) subdivideissues Common Shares or securities exchangeable for or convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares as a stock dividend (other than an issue of Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course);
(ii) makes a distribution on its outstanding Common Shares to the holders of all or substantially all of the, redivide outstanding Common Shares payable in Common Shares or change securities exchangeable for or convertible into Common Shares (other than an issue of Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course);
(iii) subdivides or redivides its outstanding Common Shares into a greater number of such sharesCommon Shares; or
(iiiv) reducereduces, combine combines or consolidate consolidates its outstanding Common Shares into a smaller number of Common Shares, (any of such shares; events in subsections (i), (ii), (iii) and (iv) being called a "Common Share Reorganization") then the Conversion Price then in effect will be adjusted effective immediately on the effective date or record date for the happening of such subdivision, redivision, change, reduction, combination or consolidationa Common Share Reorganization, as the case may be, shall in at which the case holders of Common Shares are determined for the purpose of the events referred to in (i) aboveCommon Share Reorganization, be decreased in proportion to so that it shall equal the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case price determined by multiplying the Conversion Price in effect on immediately prior to such effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the total number of Common Shares outstanding immediately prior on such effective date or record date before giving effect to such date Common Share Reorganization and the denominator shall of which will be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;).
(bc) if If and whenever at any time during after the Adjustment Period, date hereof and prior to the Time of Expiry the Corporation shall fix fixes a record date for the issuance issue of rights, options or warrants to the holders of all or substantially all of the holders of its outstanding Common Shares entitling themunder which such holders are entitled, for during a period expiring not more than 45 days after the date of such record dateissue (the "Rights Period"), to subscribe for or purchase Common Shares (or securities exchangeable for or convertible or exchangeable into Common Shares) Shares at a price per share to the holder (or having a at an exchange or conversion or exchange price per shareshare during the Rights Period to the holder in the case of securities exchangeable for or convertible into Common Shares) of less than 95% of the Twenty Day Weighted Average Trading Current Market Price for the Common Shares on such record datedate (any of such events being called a "`Rights Offering"), then the Conversion Price shall will be adjusted effective immediately after such record date the end of the Rights Period so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date immediately prior to the end of the Rights Period by a fraction, :
(i) the numerator of which will be the numerator shall be aggregate of:
(A) the total number of Common Shares outstanding on such as of the record date multiplied by for the Twenty Day Weighted Average Trading Price on such record dateRights Offering, less the fair market value and
(as B) a number determined by dividing (I) either (x) the Directors, subject to Section 7.4) product of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on issued or subscribed for during the Rights Period upon the exercise of the rights, warrants or options under the Rights Offering and the price at which such Common Shares are offered, or, as the case may be, (y) the product of the exchange or conversion price of such securities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (II) the Current Market Price of the Common Shares as of the record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;Rights Offering, and
(ii) such adjustment shall the denominator of which will be made successively whenever such a the number of Common Shares outstanding, or the number of Common Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Common Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. Any Debentureholder who has exercised the right to convert to Common Shares in accordance with this Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the last day of the Rights Period for the Rights Offering will, in addition to the Common Shares to which that holder would otherwise be entitled upon such conversion, be entitled to that number of additional Common Shares equal to the result obtained when the difference, if any, between the Conversion Price in effect immediately prior to the end of such Rights Offering and the Conversion Price as adjusted for such Rights Offering pursuant to this subsection is fixed;
(iii) multiplied by the number of Common Shares received upon the conversion of the Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price as adjusted for such Rights Offering pursuant to this subsection; provided that the provisions of section 4.6 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this subsection. Such additional Common Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised prior to on or before the expiration expiry thereof, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon on the number of Common Shares (or the securities convertible into or exchangeable into for Common Shares) actually issued upon delivered on the exercise of such rights, options or warrants, as the case may be;.
(cd) if If and whenever at any time during after the Adjustment Period date hereof and prior to the Time of Expiry, the Corporation shall fix fixes a record date for the making of a issue or the distribution to the holders of all or substantially all of the holders of its outstanding Common Shares of (i) shares securities of any classthe Corporation, whether including rights, options or warrants to acquire securities of the Corporation or any other corporation (of its property or assets and including stock dividends)evidences of indebtedness, or (ii) rightsany property or other assets, options or warrants (excluding those referred to in Section 7.1(b)); (iii) including evidences of its indebtedness indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Share Reorganization or a Rights Offering (iv) assets (including cash) any of the Corporation, then, in each such casenon-excluded events being called a "Special Distribution"), the Conversion Price shall will be adjusted effective immediately after such record date so that it shall equal the to a price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(i) the numerator of which will be:
(A) the numerator shall be product of the total number of Common Shares outstanding on such record date multiplied by and the Twenty Day Weighted Average Trading Current Market Price of the Common Shares on such record date, less ; less
(B) the fair market value (value, as determined by action by the DirectorsDirectors (whose determination, subject to Section 7.4 applicable regulatory approval or consent, will be conclusive), to the holders of Common Shares of such shares, rights, options, warrants, evidences of indebtedness securities or property or other assets so distributed, and issued or distributed in the Special Distribution; and
(ii) the denominator of which the denominator shall will be the total product of the number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading and the Current Market Price provided that:
(i) of the Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any on such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to date. To the extent that such distribution any Special Distribution is not so made, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or effective immediately to the Conversion Price which would then be in effect based upon such shares securities or rights, options property or warrants or evidences of indebtedness or other assets as actually distributed, as the case may be;.
(de) if If and whenever at any time during after the Adjustment Perioddate hereof and prior to the Time of Expiry, there is a reclassification of the Common Shares at any time outstanding or a change of the Common Shares into other shares or into other securities or other capital reorganization of the Corporation (other than as described in Section 7.1(a) a Common Share Reorganization), or a consolidation, amalgamation, arrangement amalgamation or merger of the Corporation with or into any other body corporate, trust, partnership corporation or other entityentity (other than a vertical short-form amalgamation with one or more of its wholly-owned Subsidiaries pursuant to the Business Corporations Act (Ontario)), or a sale or conveyance transfer of the property and undertaking or assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership another corporation or other entityentity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events being called a "Capital Reorganization"), any Holder of Debentures who exercises the Holder shall, upon right to convert Debentures into Common Shares pursuant to Debentures then held after the exercise effective date of the Conversion Right, such Capital Reorganization will be entitled to receive receive, and shall accept, will accept for the same aggregate consideration in lieu of the number of shares then sought Common Shares to be acquired by itwhich such Holder was previously entitled upon such conversion, the aggregate number of Common Shares or shares, other securities or other property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder holder would have been entitled to receive on as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, Capital Reorganization if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to which such holder was previously entitled upon conversion. The Corporation will take all steps necessary to ensure that, on a Capital Reorganization, the Holders of Debentures will receive the aggregate number of shares, other securities or other property to which they are entitled as a result of the Capital Reorganization. Appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Article 4 with respect to the rights and interests thereafter of holders of Debentures to the end that the provisions set forth in this Article 4 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the conversion of any Debenture. Notwithstanding the foregoing, the Corporation shall not effect any Capital Reorganization unless, prior to or concurrent therewith, an appropriate adjustment to give effect to this subsection is made by and set forth in an indenture supplemental hereto approved by action of the Directors and by the Trustee and entered into pursuant to the provisions of Article 13, in which event such adjustment will for all purposes be conclusively deemed to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifappropriate adjustment, subject to the prior written consent of the TSE and any other applicable regulatory approval of applicable stock exchanges or consent.
(f) If the Holder receives the purchase price provided for in any rights, options or warrants (the "Rights Offering Price") referred to in Section 7.1(bsubsections 4.3(c) or (d) is decreased, the share rights, options, warrants, evidences of indebtedness Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under subsection 4.3(c) or assets referred to in Section 7.1(c(d), as the case may be, in with respect to such kind and number as it would have received if it rights, options or warrants had been a holder of Common Shares made on the applicable record date basis of the Rights Offering Price as so decreased, provided that the terms of this subsection will not apply to any decrease in the Rights Offering Price resulting from terms in any such rights, options or effective datewarrants designed to prevent dilution except to the extent that the resulting decrease in the Conversion Price under this subsection would be greater than the decrease, as if any, in the case may be, Conversion Price to be made under the terms of this section by virtue of the Principal Sum having then been converted into Common Shares at occurrence of the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, event giving rise to such decrease in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1Rights Offering Price.
(g) ifIn any case in which this section 4.3 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, in the opinion Corporation may defer, until the occurrence of such event, issuing to the Holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the Directorsadjustment required by such event, provided, however, that the Corporation shall deliver to such Holder an appropriate instrument evidencing such Holder's right to receive such additional Common Shares upon the occurrence of such event and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the Date of Conversion or such later date on which such Holder would, but for the provisions of this Section 7.1 are not strictly applicablesubsection 4.3(g), or if strictly applicable would not fairly protect have become the rights holder of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in record of such provisions for the benefit of the Holder as the Directors deem appropriateadditional Common Shares pursuant to subsection 4.2(b).
Appears in 1 contract
Sources: Trust Indenture (Certicom Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer or to pay the Make Whole Premium in accordance with Section 2.4, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If the Corporation shall make a distribution to all holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which any adjustment was made pursuant to Section 6.5(c), and (y) any dividend or distribution paid exclusively in cash) (the "Distributed Securities"), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the 5 day VWAP for the Common Shares immediately prior to the ex-distribution date and of which the numerator shall be the 5 day VWAP for the Common Shares for the first 5 trading days that occur immediately post the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective 5 Business Days immediately after the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business unit of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the Toronto Stock Exchange, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers' Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the "Expiration Date") tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Common Shares") and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (f) of Section 6.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (f). For purposes of this Section 7.1.
(g) if6.5(f), in the opinion term "issuer bid" shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions Corporation for the benefit Common Shares and all references to "purchases" of Common Shares in issuer bids (and all similar references) shall mean and include the Holder as the Directors deem appropriate.purchase of Common Shares in issuer bids and all references to "tendered Common Shares" (and all similar references) shall mean and include Common Shares tendered in issuer
Appears in 1 contract
Sources: Convertible Debenture Indenture (Advantage Oil & Gas Ltd.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall ------------------------------ be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodPartnership shall (1) make a distribution in Units to Partners without payment of consideration therefor, the Corporation shall:
(i2) subdivide, redivide or change subdivide its outstanding Common Shares Units into a greater number of such shares; or
Units or (ii3) reduce, combine or consolidate its outstanding Common Shares Units into a smaller number of such shares; Units, the Conversion Price in effect on immediately prior to such action shall be adjusted so that the Noteholder shall be entitled to receive the number of Units which it would have owned immediately following such action had the Note been Converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record -------------- date, if any, in the case of a distribution or immediately after the effective date in the case of such subdivision, redivision, change, reduction, a subdivision or combination or consolidationa distribution made without a record date, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;.
(b) if and whenever at any time during In case the Adjustment Period, Partnership shall issue rights or warrants to all Partners entitling such Partners (for a period commencing no earlier than the Corporation shall fix a record date for the issuance determination of rights, options holders of Units entitled to receive such rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period and expiring not more than 45 days after such record date, ) to subscribe for or purchase Common Shares Units (or securities convertible or exchangeable Convertible into Common SharesUnits) at a price per share (or having a conversion or exchange price per share) Unit less than the Twenty Day Weighted Average Trading Price Current Fair Value of the Units on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it same shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, fraction of which the numerator shall be the total number of Common Shares Units outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less plus the fair market value number of Units which the aggregate offering price of the offered Units (as determined by or the Directors, subject to Section 7.4 aggregate Conversion price of the Convertible securities so offered) would purchase at such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Fair Value, and of which the denominator shall be the total number of Common Shares Units outstanding on such record date multiplied by plus the number of additional Units offered (or into which the Convertible securities so offered are Convertible). Such adjustments shall become effective immediately after such Twenty Day Weighted Average Trading Price provided that:record date.
(c) In case the Partnership shall distribute to all holders of Units (i) Common Shares owned by or held for the account interests of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
Partnership other than Units, (ii) such adjustment shall be made successively whenever such a record date is fixed;
evidences of indebtedness or (iii) other assets (other than (x) annual or regular quarterly distributions on the Units in an aggregate amount in any fiscal year of the Partnership not exceeding 15 percent (15%) of the Current Fair Value of the Units as of the date of such distribution, or (y) Employee Distributions or (z) Tax Distributions), or shall distribute to the extent that all holders of Units rights or warrants to subscribe for securities (other than those securities referred to in subsection (b) above), then -------------- in each such distribution is not so made, case the Conversion Price shall be readjusted to adjusted so that the same shall equal the price determined by multiplying the Conversion Price which would then be in effect if immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Fair Value of the Units on the record date had not been fixed mentioned below less the fair market value (as determined in good faith by the Board of Representatives, whose determination shall be conclusive evidence of such fair market value and described in a resolution of the Board of Representatives) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one Unit, and of which the denominator shall be such Current Fair Value of the Unit. Such adjustment shall become effective immediately after the record date for the determination of the holders of Units entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Partnership shall distribute rights or warrants to subscribe for additional Units (other than the Units referred to in subsection (b) -------------- above) ("Rights") to all holders of Units, the Partnership may (with the consent of the Noteholder), in lieu of making any adjustment pursuant to this subsection (c), make proper provision so that if the Noteholder -------------- Converts the Note, or any portion thereof, after the record date for such distribution and prior to the Conversion Price which would then be in effect based upon such shares expiration or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification redemption of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entityRights, the Holder shall, upon the exercise of the Conversion Right, Noteholder shall be entitled to receive and shall acceptupon such Conversion, in lieu addition to the Units issuable upon such Conversion ("Conversion Units"), a number of Rights to be determined as follows: (i) if such Conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates, or any other form, evidencing such Rights ("Distribution Date"), the same number of Rights to which a holder of a number of Units equal to the number of shares then sought Conversion Units is entitled at the time of such Conversion in accordance with the terms and provisions of and applicable to be acquired by itthe Rights; and (ii) if such Conversion occurs after the Distribution Date, the same number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or Rights to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered a holder of the number of Common Shares sought to be acquired by it and to Units into which it the Note was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made Convertible immediately prior to the Conversion Price;Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(ed) in In any case in which this Section 7.1(b) or 7.1(c) shall require that an adjustment be made immediately following a record date for an event, the Partnership may elect to defer, until such event, issuing to the Noteholder, if the Note, or any portion thereof, was Converted after such record date, the Units and other interests of the Partnership issuable upon such Conversion Price, no over and above the Units and other interests of the Partnership issuable upon such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares Conversion only on the applicable record date or effective date, as the case may be, by virtue basis of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shallprior to adjustment; and, in lieu of the case Units the issuance of adjustments to which is so deferred, the Conversion Price be computed to the nearest whole cent and Partnership shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues issue due bills or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion appropriate evidence of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in right to receive such provisions for the benefit of the Holder as the Directors deem appropriateinterests.
Appears in 1 contract
Sources: Note Agreement (Brylane Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time only as follows:
(a1) if and whenever at If shares of Common Stock are issued as a dividend or other distribution on any time during class of stock of the Adjustment PeriodCompany, the Corporation shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price which would otherwise be in effect at the opening of business on the effective day following the date fixed for determination of stockholders entitled to receive such subdivision, redivision, change, reduction, combination dividend or consolidation, as the case may be, other distribution shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case reduced by multiplying the such Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding immediately prior to at the close of business on the date fixed for such date determination and the denominator shall be the sum of such number of shares and the total number of Common Shares outstanding shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such datedetermination. Such adjustment shall be made successively whenever any event referred to in For the purpose of this Section 7.1(a) shall occur;
paragraph (b) if and whenever 1), the number of shares at any time during outstanding shall include shares held by the Adjustment PeriodCompany if such dividend or distribution is paid or made in respect thereof.
(2) If the Common Stock is subdivided into a greater or combined into a lesser number of shares of Common Stock, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such immediately prior thereto, or immediately prior to the record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on for such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options subdivision or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such combination if a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be proportionately adjusted immediately after such record date so that it shall equal will bear the price determined by multiplying same relation to the Conversion Price in effect on immediately prior to such subdivision or combination, or such record date by a fractiondate, of which the numerator shall be as the total number of shares of Common Shares Stock outstanding on immediately prior to such subdivision or combination, or such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject shall bear to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on immediately after such subdivision or combination or such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
date. For purposes of this paragraph (i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made2), the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such number of shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during outstanding shall include shares held by the Adjustment PeriodCompany if such subdivision or combination affects such shares.
(3) In case of any capital reorganization of the Company, there is a or of any reclassification of the Common Shares Stock, or a capital reorganization in case of the Corporation other than as described in Section 7.1(a) consolidation of the Company with, or a consolidation, amalgamation, arrangement or the merger of the Corporation with or into Company into, any other body corporate, trust, partnership corporation or other entity, or a sale or conveyance of the property sale of all or substantially all of the Company's properties and assets of the Corporation as an entirety or substantially as an entirety to any other body corporatecorporation, trusteach Convertible Note shall after such capital reorganization, partnership reclassification, consolidation, merger, or other entity, sale entitle the Holder shall, upon the exercise of the Conversion Right, be entitled holder to receive and shall accept, in lieu of upon conversion the number of shares then sought to be acquired by it, the number of Common Shares stock or other securities or property of the Corporation Company, or of the body corporate, trust, partnership or other entity corporation resulting from such merger, amalgamation, arrangement consolidation or consolidation, surviving such merger or to which such sale or conveyance may shall be made, as the case may be, that to which the Holder holder of securities deliverable (at the time of such capital reorganization, reclassification, consolidation, merger, or sale) upon conversion of such Convertible Note would have been entitled to receive on upon such reclassification, capital reorganization, reclassification, consolidation, amalgamation, arrangement merger or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it sale; and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any such case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.16(d) with respect to the rights and interests thereafter of the holders of Convertible Notes shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or any property thereafter deliverable on the conversion of the Convertible Notes. Any such adjustment which shall be approved by the Company's Board of Directors shall for all purposes of this paragraph conclusively be deemed to be an appropriate adjustment. The subdivision or combination of shares of Common Stock deliverable upon conversion of the Convertible Notes at any time outstanding into a greater or lesser number of shares of Common Stock (whether with or without par value) shall not be deemed to be a reclassification of the Common Stock for the purposes of this paragraph.
(g4) if, in For the opinion purposes of any adjustment of the DirectorsConversion Price pursuant to this Section 6(d), the following provisions shall be applicable:
(a) in case of the issuance of Common Stock for a consideration part or all of which shall be cash (including such issuance upon exercise of rights, warrants or options, granted without consideration, to subscribe for or purchase such shares), the amount of the cash consideration shall be the amount of such 6 cash received by the Company, provided that no deduction shall be made for any commissions, discounts or expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith; and
(b) in case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the lower of the fair value thereof as determined by the Board of Directors of the Company or the value of the shares issued based on the Current Market Value of the Common Stock (determined as provided in Section 6(d)(F)).
(5) For the purpose of this Section 7.1 are not strictly applicable6(d)(A), shares of Common Stock or if strictly applicable would not fairly protect other securities held in the rights treasury of the Holder Company shall not be deemed to be outstanding, except as specifically provided herein, and the sale or other disposition of any shares of Common Stock or other securities held in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit treasury of the Holder as the Directors deem appropriateCompany shall be deemed an issuance thereof.
Appears in 1 contract
Sources: Note Purchase Agreement (I2 Telecom International Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time only as follows:
(a1) if and whenever at If shares of Common Stock are issued as a dividend or other distribution on any time during class of stock of the Adjustment PeriodCompany, the Corporation shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price which would otherwise be in effect at the opening of business on the effective day following the date fixed for determination of stockholders entitled to receive such subdivision, redivision, change, reduction, combination dividend or consolidation, as the case may be, other distribution shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case reduced by multiplying the such Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding immediately prior to at the close of business on the date fixed for such date determination and the denominator shall be the sum of such number of shares and the total number of Common Shares outstanding shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such datedetermination. Such adjustment shall be made successively whenever any event referred to in For the purpose of this Section 7.1(a) shall occur;
paragraph (b) if and whenever 1), the number of shares at any time during outstanding shall include shares held by the Adjustment PeriodCompany if such dividend or distribution is paid or made in respect thereof.
(2) If the Common Stock is subdivided into a greater or combined into a lesser number of shares of Common Stock, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such immediately prior thereto, or immediately prior to the record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on for such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options subdivision or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such combination if a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be proportionately adjusted immediately after such record date so that it shall equal will bear the price determined by multiplying same relation to the Conversion Price in effect on immediately prior to such subdivision or combination, or such record date by a fractiondate, of which the numerator shall be as the total number of shares of Common Shares Stock outstanding on immediately prior to such subdivision or combination, or such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject shall bear to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on immediately after such subdivision or combination or such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
date. For purposes of this paragraph (i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made2), the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such number of shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during outstanding shall include shares held by the Adjustment Period, there is a reclassification Company if such subdivision or combination affects such shares.
(3) In case of the Common Shares or a any capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entityCompany, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.any
Appears in 1 contract
Sources: Note Purchase Agreement (Cereus Technology Partners Inc)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time adjusted as follows:set forth in this section.
(a) In the event that the Company shall make any distribution of its assets upon or with respect to its shares of Common Stock, as a liquidating or partial liquidating dividend, or other than as a dividend payable out of earnings or any surplus legally available for dividends under the laws of the state of incorporation of the Company, each Holder of any Convertible Note then outstanding shall, upon the exercise of his right to convert after the record date for such distribution or, in the absence of a record date, after the date of such distribution receive, in addition to the shares subscribed for, the amount of such assets (or, at the option of the Company, a sum equal to the value thereof at the time of distribution as determined by the Board of Directors in its sole discretion) which would have been distributed to such Holder if and whenever he had exercised his right to convert immediately prior to the record date for such distribution or, in the absence of a record date, immediately prior to the date of such distribution.
(b) In case at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, redivide or change Company shall subdivide its outstanding shares of Common Shares Stock into a greater number of shares, the current Conversion Price in effect immediately prior to such shares; or
(ii) reducesubdivision shall be proportionately reduced and conversely, combine or consolidate its in case the outstanding shares of Common Shares Stock of the Company shall be combined into a smaller number of such shares; , the Current Conversion Price in effect on immediately prior to such combination shall be proportionately increased.
(c) If any capital reorganization or reclassification of the effective date capital stock of the Company, or consolidation or merger of the company with another corporation, or the sale transfer or lease of all or substantially all of its assets to another corporation, shall be effected in such a way that holders of shares of Common Stock shall be entitled to receive shares, securities or assets with respect to or in exchange for shares of Common Stock, then, as a condition of such subdivisionreorganization, redivisionreclassification, changeconsolidation, reductionmerger or sale, combination the Company or consolidationsuch successor or purchasing corporation, as the case may be, shall in execute an amendment to the case Convertible Notes providing that the Holder of each Convertible Note then outstanding shall have the right thereafter and until the expiration of the events referred period of convertibility to in (i) aboveconvert such Convertible Note into the kind and amount of shares, be decreased in proportion to the number of outstanding Common Shares resulting from securities or assets receivable upon such subdivisionreorganization, redivision reclassification, consolidation, merger or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date sale by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu holder of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to Stock into which such sale or conveyance may be made, as the case may be, that the Holder would Convertible Note might have been entitled converted immediately prior to receive on such reorganization, reclassification, capital reorganization, consolidation, amalgamation, arrangement merger or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifsale, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred adjustments which shall be as nearly equivalent as may be practicable to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case 6.
(d) Upon such adjustment of adjustments to the Conversion Price be computed pursuant to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors6.06, the provisions number of shares issuable upon conversion of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect Note shall be adjusted to the rights nearest full amount by multiplying a number equal to the Conversion Price in effect immediately prior to such adjustment by the number of shares of Common Stock issuable upon exercise of this Note immediately prior to such adjustment and dividing the Holder in accordance with product so obtained by the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriateadjusted Conversion Price.
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the requirements of the CSE (or such other exchange on which the Debentures are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than cash dividends or distributions for which an adjustment would be made under Section 6.5(b)) (a “Common Share Reorganization”), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution, as the case may be, shall in be adjusted effective immediately after the case record date at which the holders of Common Shares are determined for the purpose of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case Share Reorganization by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such record date and by a fraction: (1) the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become so, that they were convertible or exchangeable on the record date on the basis upon which they first become convertible or exchangeable); and (2) the numerator of which shall be the number of Common Shares outstanding on such record date before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) 6.5 shall occur;. Any such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any Applicable Period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If the Corporation shall make a distribution to all holders of Common Shares on of shares in the applicable record date or effective date, as the case may be, by virtue capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 6.5(b)) (the “Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the VWAP for the Common Shares for the five consecutive trading days immediately prior to the ex-distribution date and of which the numerator shall be the VWAP for the Common Shares for the first five consecutive trading days that occur immediately following ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately following the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of: (A) the VWAP for the Common Shares for the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the CSE, or effective date, such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of: (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers’ Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the VWAP for the Common Shares for the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which: (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the nearest whole cent and shall apply Trustee) payable to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in shareholders based on the acceptance (up to any adjustment under the provisions of this Section 7.1.
(g) if, maximum specified in the opinion terms of the Directorsissuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable Conversion Price shall again be adjusted to be the Conversion Price which would not fairly protect the rights of the Holder have been in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.effect based upon th
Appears in 1 contract
Sources: Debenture Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time by the Parent as follows:
(a) if and whenever at any time during In case the Adjustment Period, the Corporation shall:
Parent shall (i) subdividepay a dividend in shares of Common Stock to all holders of Common Stock, redivide or change (ii) make a distribution in shares of Common Stock to all holders of Common Stock, (iii) subdivide its outstanding Common Shares Stock into a greater number of such shares; or
, or (iiiv) reduce, combine or consolidate its outstanding Common Shares Stock into a smaller number of such shares; , the applicable Conversion Price in effect on immediately prior thereto shall be adjusted so that the effective date of such subdivision, redivision, change, reduction, combination Term B Loan Lender or consolidationthe Term C Loan Lender, as the case may be, shall be entitled to receive that number of shares of Common Stock which it would have owned had the Term B Loan or the Term C Loan, as the case may be, been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of subdivision or combination.
(b) In case the events referred Parent shall issue rights or warrants to all or substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring not more than 90 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share of Common Stock (as determined in accordance with subsection (iie) aboveof this Section 15.6) at the record date for the determination of shareholders entitled to receive such rights or warrants, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the applicable Conversion Price in effect on immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying such effective Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares which the aggregate offering price of the total number of shares of Common Shares outstanding immediately prior to Stock so offered (or the aggregate applicable Conversion Price of the convertible securities so offered) would purchase at such date current market price, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding immediately after on such daterecord date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever any event referred such rights or warrants are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the applicable adjusted Conversion Price shall be immediately readjusted to in this Section 7.1(a) shall occur;what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(bc) if and whenever at any time during In case the Adjustment Period, the Corporation Parent shall fix a record date for the issuance of rights, options or warrants distribute to all or substantially all the holders of its outstanding Common Shares entitling themStock any shares of capital stock (other than Common Stock) of the Parent evidences of indebtedness or other non-cash assets (including securities of any company other than the Parent), for a period expiring not more than 45 days after such record date, or shall distribute to all or substantially all holders of Common Stock rights or warrants to subscribe for or purchase Common Shares any of its securities (or securities convertible or exchangeable into Common Sharesexcluding those referred to in subsection (b) at a price per share of this Section 15.6) (or having a conversion or exchange price per share) less than "Rights"), then in each such case the Twenty Day Weighted Average Trading Price on such record date, the applicable Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the such Conversion Price in effect on immediately prior to the date of such record date distribution by a fraction, fraction of which the numerator shall be the total number current market price per share (as defined in subsection (e) of this Section 15.6) of Common Shares outstanding Stock on such the record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, mentioned below less the fair market value on such record date (as determined by the DirectorsBoard of Directors of the Parent, subject to Section 7.4whose determination shall be conclusive evidence of such fair market value) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such rights, options rights or warrantswarrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator shall be the total number current market price per share (as defined in subsection (e) of this Section 15.6) of Common Shares outstanding Stock on such record date. Such adjustment shall become effective immediately after the record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account determination of shareholders entitled to receive such distribution. Notwithstanding the corporation or any subsidiary foregoing, in the event that the Parent shall be deemed not distribute Rights (other than those referred to be outstanding for the purpose in subsection (b) of any such computation;
(iithis Section 15.6) such adjustment shall be made successively whenever such a record date is fixed;
(iii) pro rata to the extent that any such rights, options or warrants are not exercised prior to the expiration thereofholders of Common Stock, the Conversion Price shall be readjusted Parent may, in lieu of making any adjustment pursuant to this Section 15.6, make proper provision so that the Conversion Price which would then be in effect if such record date had not been fixed Term B Loan Lender or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrantsTerm C Loan Lender, as the case may be;, upon conversion of the Term B Loan or the Term C Loan, as the case may be, after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which the Term B Loan Lender or the Term C Loan Lender, as the case may be, of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which the Term B Loan Lender or the Term C Loan Lender, as the case may be, of the number of shares of Common Stock into which the outstanding principal amount of the Term B Loan or the Term C Loan, as the case may be, together with all accrued and unpaid interest thereon so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(cd) if and whenever In case the Parent shall, by dividend or otherwise, at any time during the Adjustment Period the Corporation shall fix distribute (a record date for the making of a distribution "Triggering Distribution") to all or substantially all the holders of its outstanding Common Shares Stock cash in an aggregate amount that, together with the aggregate amount of any other cash distributions to all or substantially all holders of Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no applicable Conversion Price adjustment pursuant to this Section 15.6 has been made, exceeds 50% of the product of the current market price per share of Common Stock (ias determined in accordance with subsection (e) of this Section 15.6) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Parent, multiplied by the number of shares of any class, whether Common Stock outstanding on such date (excluding shares held in the treasury of the Corporation or any other corporation (including stock dividendsParent), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the applicable Conversion Price shall be adjusted immediately after such record date reduced so that it the same shall equal the price determined by multiplying the such Conversion Price in effect on such record date immediately prior to the Determination Date by a fraction, fraction of which the numerator shall be the total number current market price per share of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value Stock (as determined by in accordance with subsection (e) of this Section 15.6) on the DirectorsDetermination Date less the amount of cash so distributed within such 12 months (including, subject without limitation, the Triggering Distribution) applicable to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number one share of Common Shares outstanding Stock (determined on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu basis of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, Stock outstanding on the record date or Determination Date) and the effective date thereof, as the case may be, the Holder had been the registered holder of the number denominator shall be such current market price per share of Common Shares sought Stock (as determined in accordance with subsection (e) of this Section 15.6) on the Determination Date, such reduction to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made become effective immediately prior to the Conversion Price;opening of business on the day following the date on which the Triggering Distribution is paid.
(e) in For the purpose of any case in which computation under subsections (b), (c) and (d) of this Section 7.1(b) or 7.1(c) require that an adjustment be made to 15.6, the Conversion Price, no such adjustment current market price per share of Common Stock on any date shall be made if, subject deemed to be the prior approval average of applicable stock exchanges the Holder receives daily closing prices for the rights, options 30 consecutive Trading Days commencing 35 Trading Days before (i) the Determination Date with respect to distributions under subsection (d) of this Section 15.6 or warrants referred to in Section 7.1(b(ii) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments with respect to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues issuances or other events resulting in any adjustment requiring such computation under the provisions subsection (b) or (c) of this Section 7.115.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjustment, calculated in good faith by the Company, from time to time as follows:
(a) if and whenever at any time during In case the Adjustment PeriodCompany shall hereafter pay a dividend or make a distribution to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Corporation shallConversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction:
(i) subdividethe numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date fixed for such determination; and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution. Such reduction shall become effective immediately after the opening of business on the day following the Conversion Record Date. If any dividend or distribution of the type described in this Section 12.4(a) is declared but not so paid or made, redivide the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or change its distribution had not been declared.
(b) In case the outstanding shares of Common Shares Stock shall be subdivided or reclassified into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such shares; or
(ii) reducesubdivision or reclassification becomes effective shall be proportionately reduced, combine and conversely, in case outstanding shares of Common Stock shall be combined or consolidate its outstanding Common Shares reclassified into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect at the opening of business on the effective date of day following the day upon which such subdivision, redivision, change, reduction, combination or consolidationreclassification becomes effective shall be proportionately increased. Such reduction or increase, as the case may beapplicable, shall in become effective immediately after the opening of business on the day following the day upon which such subdivision or combination or reclassification becomes effective.
(c) In case of the events Company shall issue rights or warrants (other than any rights or warrants issued pursuant to a rights plan) referred to in (iSection 12.4(d)) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding shares of Common Shares Stock entitling them, for a period expiring not more than 45 days after such record date, them to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into shares of Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price on the Conversion Record Date fixed for the determination of stockholders entitled to receive such record daterights or warrants, the Conversion Price shall be adjusted immediately after such record date so that it the same shall equal the amount price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date Conversion Record Date by a fraction, :
(i) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date, plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price; and
(ii) the denominator of which shall be the number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price close of business on such record datethe Conversion Record Date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be plus the total number of additional shares of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
Stock so offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever become effective immediately after the opening of business on the day following the Conversion Record Date fixed for determination of stockholders entitled to receive such a record date is fixed;
(iii) to rights or warrants. To the extent that any such rights, options shares of Common Stock (or warrants securities convertible into Common Stock) are not exercised prior delivered pursuant to such rights or warrants, upon the expiration thereofor termination of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if had the adjustments made upon the issuance of such record date had not rights or warrants been fixed or to made on the Conversion Price which would then be in effect based upon basis of the delivery of only the number of shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) actually issued upon delivered. In the exercise of event that such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options rights or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such caseare not so issued, the Conversion Price shall again be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed fixed. In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Common Stock at less than such Current Market Price, and in determining the Conversion Price which would then be in effect based upon aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or rightswarrants, options or warrants or evidences the value of indebtedness or assets actually distributedsuch consideration if other than cash, as to be determined by the case may be;Board of Directors.
(d) if and whenever at In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any time during the Adjustment Period, there is a reclassification class of Capital Stock of the Common Shares or a capital reorganization of the Corporation Company (other than as described in any dividends or distributions to which Section 7.1(a12.4(a) applies) or a consolidationevidences of its Indebtedness, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership cash or other entityassets, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporateincluding securities, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;but excluding:
(ei) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options rights or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c12.4(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(fii) the adjustments provided for in this Section 7.1 are cumulativedividends or distributions of stock, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues securities or other events resulting property or assets (including cash) in any adjustment under the provisions of this connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 7.1.12.5 applies;
(giii) if, dividends and distributions paid exclusively in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.cash; and
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the applicable Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 5.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the applicable Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the applicable Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the applicable Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) prior to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences Time of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment PeriodExpiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.5(a) or a consolidation, amalgamation, arrangement or arrangement, share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 5.5(l). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 5.5(c), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.5(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such kind purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.5(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 5.5(c) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this Section 5.5(c) applies shall be given in accordance with Section 5.10.
(d) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 5.5(b) and (ii) any dividend or distribution paid exclusively in cash (the “Distributed Securities”), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the applicable Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the applicable Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the CSE (or such other recognized stock exchange on which the Common Shares are listed for trading) and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the applicable Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as it so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (d) of Section 5.5 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares.
(e) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided below) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it had may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the applicable Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the applicable Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by Applicable Law from effecting any or all such purchases or any or all such purchases are rescinded, the applicable Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, if any. If the application of this clause (e) of Section 5.5 to any issuer bid would result in a decrease in the applicable Conversion Price, no adjustment shall be made for such issuer bid under this clause (e). For purposes of this Section 5.5(e), the term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Corporation for the Common Shares and all references to “purchases” of Common Shares in issuer bids (and all similar references) shall mean and include the purchase of Common Shares in issuer bids and all references to “tendered Common Shares” (and all similar references) shall mean and include Common Shares tendered in issuer bids.
(f) In any case in which this Section 5.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.5(f), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.4(2).
(fg) the The adjustments provided for in this Section 7.1 5.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the applicable Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the applicable Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.15.5(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gh) if, in For the opinion purpose of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.calcu
Appears in 1 contract
Sources: Secured Trust Indenture
Adjustment of Conversion Price. The Subject to the requirements of the TSX (or such other recognized exchange on which the Debentures are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
: (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares (other than for the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares) entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record datedate (other than pursuant to a distribution reinvestment plan of the Corporation), the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrantswarrants were included in such fraction, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of of: (i) shares of any class, whether class other than Common Shares and other than shares distributed to holders of Common Shares who have elected to receive dividends or distributions in the Corporation form of such shares in lieu of dividends or any other corporation (including stock dividends), distributions paid in the ordinary course; (ii) rights, options or warrants (excluding those referred rights, options or warrants for which any adjustment was made pursuant to in Section 7.1(b)6.5(b) and rights, options or warrants entitling the holders thereof for a period of not more than 45 days to subscribe for or purchase Common Shares or securities convertible into Common Shares); (iii) evidences of its indebtedness indebtedness; or (iv) assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Share on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 TSX approval and with the approval of the Trustee, which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;. In clause (iv) of this subsection (c) the term "dividends or distributions paid in the ordinary course" shall include the value of any securities or other property or assets distributed in lieu of cash dividends or distributions paid in the ordinary course at the option of shareholders. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the Ex-Dividend Date and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of one Spinoff Security or, if no such prices are available, the fair market value of one Spinoff Security as reasonably determined by the Board of Directors, subject to TSX approval (which determination shall be conclusive and shall be evidenced by an Officers' Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution. In respect of any conversion during the Spinoff Valuation Period, references to consecutive trading days shall be deemed to be replaced with such lesser number of trading days as have elapsed between the Commencement of the Spinoff Valuation Period and the relevant conversion date.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization or change of the Corporation Common Shares other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership person or other entity, ; or a sale sale, transfer or conveyance other disposition of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, change, consolidation, amalgamation, arrangement or merger, sale, transfer, disposition or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership person or other entity resulting from such mergerreclassification, capital reorganization, change, consolidation, amalgamation, arrangement or consolidationmerger, or to which such sale or conveyance sale, transfer, disposition may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, change, consolidation, amalgamation, arrangement or merger, sale sale, transfer, dispositions or conveyanceliquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, change, consolidation, amalgamation, arrangement, merger, sale, transfer, dispositions or liquidation, dissolution or winding-up or other similar transaction, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any shares or other securities or property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5(d) and which shall apply to successive reclassifications, capital reorganizations, changes, consolidations, amalgamations, mergers, sales, transfers, dispositions and to any successive liquidation, dissolution or winding up or other similar transaction. For greater certainty, nothing in this Section 6.5(d) shall affect or reduce the requirement for any person to make a Debenture Offer or to pay the Make Whole Premium in accordance with Section 2.4, and notice of any transaction to which this Section 6.5(d) applies shall be given in accordance with Section 6.10.
(e) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares on in respect of any Applicable Period, the applicable Conversion Price shall be adjusted immediately after such record date or effective date, as so that it shall be equal to the case may be, price determined by virtue of the Principal Sum having then been converted into Common Shares at multiplying the Conversion Price in effect on such record date by a fraction, of which the applicable denominator shall be the Current Market Price per Share on such record date and of which the numerator shall be the Current Market Price per Share on such record date minus the amount in cash per Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or effective datedistribution is not paid, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments Conversion Price shall be re-adjusted to the Conversion Price which would then be computed in effect if such record date had not been fixed. For the avoidance of doubt, if and to the nearest whole cent extent any adjustment pursuant to Sections 6.5(a), 6.5(b) and 6.5(c) is made, no adjustment to the Conversion Price pursuant to this Section 6.5(e) shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, also be made. In this subsection (e) the term "dividends" or "distributions, issues " shall include the value of any securities or other events resulting property or assets distributed in any adjustment under the provisions lieu of this Section 7.1.
(g) if, cash dividends or distributions paid in the opinion ordinary course at the option of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriateshareholders.
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the requirements of the TSXV or any other Recognized Stock Exchange on which the Debentures are then listed, if any, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend in the ordinary course, distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), or otherwise, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.4(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.4.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any period of time, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares, provided that the Conversion Price so adjusted is not less than $1.25. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry, the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based if the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.4(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or acquisition of the Corporation or other entitycombination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporatePerson (other than a direct or indirect wholly-owned Subsidiary of the Corporation) or a liquidation, trustdissolution or winding-up of the Corporation, partnership any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or other entityconveyance or liquidation, the Holder shalldissolution or winding-up, upon the exercise of such right thereafter, shall, subject to the Conversion Rightimmediately following paragraph, be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity Person resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)purchasing Person, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or effective datesuch purchasing Person and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. Notice of any transaction to which this Section 6.4(d) applies shall be given in accordance with Section 6.9. Notwithstanding any other provision in this Indenture or in the form of any Debenture, if a holder would otherwise become entitled to receive, upon conversion of a Debenture, any property or securities (the “Ineligible Consideration”) that would not constitute prescribed securities for the purposes of Section 212(1)(b)(vii)(E) of the Tax Act as it applied on December 31, 2007 (“Prescribed Securities”), such holder shall not be entitled to receive such Ineligible Consideration upon conversion of the Debenture, but shall instead be entitled to receive Prescribed Securities of the Corporation (or a successor, as the case may be) with a fair market value equal to the fair market value of such Ineligible Consideration, as reasonably determined by the Board (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee); provided, however, that the Corporation or a successor, as the case may be, by virtue shall have the right (at the sole option of the Principal Sum having then been converted into Common Shares at Corporation or the Conversion Price in effect on the applicable record or effective datesuccessor, as the case may be;
(f) but not the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments obligation to deliver such Ineligible Consideration to the Conversion Price be computed holder upon the conversion of the Debenture in lieu of such Prescribed Securities. At least 30 days prior to the nearest whole cent and shall apply effective date of a transaction that would otherwise cause holders of Debentures to successive subdivisionsbecome entitled to receive Ineligible Consideration upon a conversion of the Debentures, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions Corporation will give notice to such holders of this Section 7.1the consideration into which the Debentures will be convertible following such transaction.
(ge) if, If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the opinion capital of the Directors, the provisions of this Section 7.1 are not strictly applicableCorporation other than Common Shares, or if strictly applicable would not fairly protect the rights evidences of indebtedness or other assets of the Holder in accordance with the intent and purposes hereofCorporation, the Directors shall make including securities (but excluding (x) any issuance of rights or warrants for which an adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.was made pursuant to Section 6.4(c) and
Appears in 1 contract
Sources: Convertible Debenture Indenture
Adjustment of Conversion Price. The Unless otherwise specified pursuant to Section 301, the Conversion Price in effect at any date shall applicable to each series of Securities which are convertible into Common Stock pursuant to Section 301 will be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment Period, the Corporation shall:
Company shall (i) subdividepay a dividend in shares of Common Stock to holders of Common Stock, redivide or change (ii) make a distribution in shares of Common Stock to holders of Common Stock, (iii) subdivide its outstanding shares of Common Shares Stock into a greater number of such shares; or
shares of Common Stock, or (iiiv) reduce, combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; shares of Common Stock, the Conversion Price in effect on immediately prior to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of a dividend or distribution and shall become effective immediately after the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, effective date in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination a subdivision or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;combination.
(b) if and whenever at any time during In case the Adjustment Period, Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the Corporation shall fix a record date for the issuance determination of rights, options holders of Common Stock entitled to receive such rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period and expiring not more than 45 days after such record date, ) to subscribe for or purchase shares of Common Shares Stock (or securities convertible or exchangeable into Common SharesStock) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Current Market Price (as determined pursuant to subsection (d) below) of the Common Stock on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it same shall equal the price determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, fraction of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less plus the fair market value number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (as determined by or the Directors, subject to Section 7.4 aggregate conversion price of the convertible securities so offered) would purchase at such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of shares of Common Shares Stock outstanding on such record date multiplied by plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such Twenty Day Weighted Average Trading Price provided that:record date.
(ic) In case the Company shall distribute to substantially all holders of Common Shares owned by or held for the account Stock shares of any class of Capital Stock of the Corporation Company other than Common Stock, evidences of indebtedness or any subsidiary other assets (other than cash dividends or distributions out of current or retained earnings), or shall be deemed not distribute to be outstanding substantially all holders of Common Stock rights or warrants to subscribe for the purpose of any securities (other than those securities referred to in subsection (b) above), then in each such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, case the Conversion Price shall be readjusted to adjusted so that the same shall equal the price determined by multiplying the Conversion Price which would then be in effect if such record date had not been fixed or immediately prior to the Conversion date of such distribution by a fraction of which the numerator shall be the Current Market Price which would then be (determined as provided in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
subsection (d) if and whenever at any time during the Adjustment Period, there is a reclassification below) of the Common Shares or stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, and described in a capital reorganization Board Resolution) of the Corporation portion of the assets so distributed in respect of, or of such subscription rights or warrants applicable, to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's Capital Stock (other than as described those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 7.1(a1606, make proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or a consolidation, amalgamation, arrangement or merger redemption of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, Rights shall be entitled to receive and shall acceptupon such conversion, in lieu addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property Stock into which the principal amount of the Corporation or of Security so converted was convertible immediately prior to the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder Distribution Date would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) The "Current Market Price" per share of Common Stock on any date or shall be deemed to be the effective date thereof, as the case may be, the Holder had been the registered holder average of the number Daily Market Prices for the shorter of Common Shares sought (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to be acquired by it and in determining such Daily Market Prices prior to which it was entitled to acquire upon the exercise time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the Conversion Right and a contemporaneous and equal adjustment shall issuance of such rights or such warrants or such other distribution through such last full Trading Day on which the distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by the Company to its stockholders will not be made taxable to the Conversion Price;recipients thereof.
(e) in In any case in which this Section 7.1(b) or 7.1(c) 1606 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the Conversion Price, no Holder of any Security converted after such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;
(f) the adjustments provided for in this Section 7.1 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.shares of
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
Shares, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; Shares, or (iii) issue Shares or securities convertible into or exchangeable for Shares to the holders of all or substantially all of the outstanding Shares by way of a dividend or distribution (other than pursuant to any distribution re-investment or Share purchase plans or similar arrangements), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision redivision, dividend or changedistribution (including, in the case where securities convertible into or exchangeable for Shares are distributed, the number of Shares that would have been outstanding had all such securities been exchanged for or converted into Shares on such effective date or record date), or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.4(a) shall occur;. Any such issue of Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Shares under Subsections 5.4(b) and 5.4(c) of this Section 5.4.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share Share (or having a conversion or exchange price per shareShare) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus that number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Twenty Day Weighted Average Trading Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
plus the total number of additional Shares offered for subscription or purchase (i) any Common Shares owned by or held for into which the account of the corporation convertible or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such exchangeable securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Shares (other than pursuant to any distribution re-investment or any other corporation (including stock dividendsshare purchase plans or similar arrangements), (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(bsubscribe for or purchase Shares or securities convertible or exchangeable into Shares)); , (iii) evidences of its indebtedness indebtedness, or (iv) other assets (including cashexcluding dividends or distributions paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Share on such record date, less the fair market value (as determined by an Investment Dealer chosen by the DirectorsCorporation, subject to Section 7.4 which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such per Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) Subject to Section 9.1, if and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.4(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entityperson, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership person or other entity, or a liquidation, dissolution or winding up of the Holder shallCorporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance or liquidation, dissolution or winding- up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Shares then sought to be acquired by it, the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership person or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 5.4(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly equivalent as may be practicable, with respect to any shares or other securities or property to which a holder of Common Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 5 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances or other similar transactions
(e) In any case in which this Section 5.4 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation shall defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends or distributions made on such additional Shares declared in favour of holders of record of Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 5.4(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common such additional Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.4(b).
(f) the The adjustments provided for in this Section 7.1 5.4 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.1.5.4(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment
(g) ifFor the purpose of calculating the number of Shares outstanding, Shares owned by or for the benefit of the Corporation or any Subsidiary of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 5.4, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation (who may be the Auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Trustee, and the Debentureholders (subject to manifest error).
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Section 5.4, which in the opinion of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable directors would not fairly protect materially adversely affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time as the directors in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that the directors have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of the Holder TSX or the TSX-V, as the Directors deem appropriatecase may be, no adjustment in the Conversion Price shall be made in respect of any event described in Section 5.4(a), Section 5.4(b) or Section 5.4(c) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the case may be, of such event.
(k) Except as stated above in this Section 5.4, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Shares at less than the Current Market Price for such Shares on the date of issuance.
Appears in 1 contract
Sources: Trust Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
units, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; units, or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend (other than the issue of Common Shares to Shareholders who have elected to receive dividends in the form of Common Shares in lieu of cash dividends paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.5(a) shall occur;. Any such issue of Common Shares by way of a dividend shall be deemed to have been made on the record date for the dividend for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 6.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share unit (or having a conversion or exchange price per shareunit) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the quotient obtained by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such rightsoptions, options rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon on the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rightsoptions, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares units of any class, whether class other than Common Shares and other than units distributed to Shareholders who have elected to receive dividends in the form of such Common Shares in lieu of dividends paid in the Corporation or any other corporation (including stock dividends)ordinary course, (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof as at a specified date to in Section 7.1(bsubscribe for or purchase Common Shares or securities convertible into Common Shares for a period of not more than 45 days after such date)); , (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashexcluding dividends paid in the ordinary course) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the Directorstrustee of the Corporation or the directors of the Manager or the Corporation, subject to Section 7.4 with the approval of the Debenture Trustee, which determination shall be conclusive) of such sharesunits, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if only such shares or units, rights, options or warrants or options, warrants, evidences of indebtedness or assets actually distributed, as the case may be;. In clause (iv) of this subsection (c) the term "distributions paid in the ordinary course" shall include the value of any securities or other property or assets distributed in lieu of cash dividends paid in the ordinary course at the option of shareholders.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.5(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, Person; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporatePerson or a liquidation, trustdissolution or winding-up of the Corporation, partnership any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale, conveyance, liquidation, dissolution or other entity, the Holder shallwinding-up or similar transaction, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares or other securities or property assets of the Corporation or of the body corporate, trust, partnership or other entity Person resulting from such mergerreclassification, capital reorganization, consolidation, amalgamation, arrangement or consolidationmerger or similar transaction, or to which such sale or conveyance may be mademade or which Shareholders receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, sale sale, conveyance, liquidation, dissolution or conveyancewinding-up or similar transaction, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors of the Manager, on behalf of the Corporation, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 6.5(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)purchasing Person, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up or similar transaction, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any securities or other property to which a holder of Debentures is entitled on the exercise of its conversion rights thereafter. Any indenture entered into between the Corporation and the Debenture Trustee pursuant to the provisions of this Section 6.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 16. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person and the Debenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.5 and which shall apply to successive reclassifications, capital reorganizations, consolidations, amalgamations, arrangements, mergers, sales or conveyances or to a liquidation, dissolution or winding-up or similar transaction.
(e) In any case in which this Section 6.5 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event prior to giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any dividends paid on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this Section 6.5(e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 6.5(d).
(f) the The adjustments provided for in this Section 7.1 6.5 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this Section 7.16.5(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Common Shares outstanding, Common Shares owned by or for the benefit of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 6.5, such question shall be conclusively determined by a firm of nationally recognized chartered accountants appointed by the Corporation and acceptable to the Debenture Trustee (who may be the Auditors of the Corporation); such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Debenture Trustee, and the Debentureholders.
(i) In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 6.5, which in the opinion of the Directorsdirectors of the Manager, on behalf of the provisions of this Section 7.1 are not strictly applicableCorporation, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors of the Manager, on behalf of the Corporation, subject to the prior written consent of the Toronto Stock Exchange or such other exchange on which the Debentures are then listed, as the directors of the Manager, on behalf of the Corporation, in their sole discretion may determine to be equitable in the circumstances. Failure of the directors of the Manager to make any such an adjustment shall be conclusive evidence that they have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior written consent of the Holder Toronto Stock Exchange or such other exchange on which the Debentures are then listed, no adjustment in the Conversion Price shall be made in respect of any event described in Sections 6.5(a), 6.5(b) or 6.5(c) other than the events described in 6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 6.5, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the Current Market Price for such Common Shares on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
: (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection (a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of Common Shares under subsections (b) and (c) of this Section 5.3.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrantsper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii. For greater certainty, no adjustment shall be made pursuant to this Section 5.3(b) to for the issuance of securities under the Corporation’s stock option plan or existing employment agreements. To the extent that any such rights, options rights or warrants are not so issued or any such rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be;.
(c) if If and whenever at any time during prior to the Adjustment Period Time of Expiry the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of of: (i) shares of any class, whether class other than Common Shares and other than shares distributed to holders of Common Shares who have elected to receive dividends or distributions in the Corporation or any other corporation (including stock form of such shares in lieu of dividends), ; (ii) rights, options or warrants (excluding those referred rights, options or warrants entitling the holders thereof for a period of not more than 45 days to in Section 7.1(b)subscribe for or purchase Common Shares or securities convertible into Common Shares); (iii) evidences of its indebtedness indebtedness; or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price per Common Share on such record date, less the fair market value (as determined by the Directorsdirectors with the approval of the TSXV, subject to Section 7.4 which determination shall be conclusive) of such shares, shares or rights, options, warrants, options or warrants or evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Current Market Price provided that:
(i) per Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Share. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that such distribution is not so made, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.3(a) or a consolidation, amalgamation, statutory arrangement or merger of the Corporation with or into any other body corporate, trust, partnership Person or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation or a take-over bid resulting in the acquisition of all or substantially all of the outstanding Common Shares of the Corporation, any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, statutory arrangement or merger, sale or conveyance or liquidation, dissolution or winding-up, or take-over bid, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, the number of Common Shares Shares, shares or other securities or property (including cash) of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement amalgamation or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up or takeover bid or arrangement, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceconveyance or liquidation, dissolution or winding-up or take-over bid, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the directors to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 5.3(d), the Corporation, its Successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up or take-over bid, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any shares or other securities or property (including cash) to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Indenture Trustee pursuant to the provisions of this Section 5.3(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 14 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Indenture Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.3(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales, conveyances, liquidations, dissolutions, winding-up or take- over bids.
(e) In any case in which this Section 5.3 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the holder of any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the applicable Date of Conversion or such later date as such holder would, but for the provisions of this subsection (e), have become the holder of record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into such additional Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 5.2(b).
(f) the The adjustments provided for in this Section 7.1 5.3 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.15.3, provided that, notwithstanding any other provision of this Section 5.3, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) ifFor the purpose of calculating the number of Common Shares of the Corporation outstanding, Common Shares owned by or for the benefit of the Corporation shall not be counted.
(h) In the event of any question arising with respect to the adjustments provided in this Section 5.3, such question shall be conclusively determined by the directors, acting reasonably, and such determination shall be binding upon the Corporation, the Indenture Trustee and the Debentureholders. Notwithstanding this subsection (h), any adjustment to the Debentures pursuant to this Section 5.3 or in relation to a Change of Control shall be subject to the prior approval of the TSXV.
(i) In case the Corporation shall take any action affecting the Common Shares other than action described in this Section 5.3, which in the opinion of the Directorsdirectors, the provisions of this Section 7.1 are not strictly applicableacting reasonably, or if strictly applicable would not fairly protect materially affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall be adjusted in such manner and at such time, by action of the directors, subject to the prior written consent of the TSXV, as the directors in their sole discretion may determine to be equitable in the circumstances. Failure of the directors to make any such an adjustment shall be conclusive evidence that the directors have determined that it is equitable to make no adjustment in such provisions for the benefit circumstances.
(j) Subject to the prior regulatory approval, no adjustment in the Conversion Price shall be made in respect of any event described in subsections 5.3(a) (other than subsection 5.3(a)(i) and 5.3(a)(ii)), 5.3(b), or 5.3(c) if the holders of the Holder Debentures are entitled to participate in such event as though they had converted their Debentures prior to the applicable record date or effective date, as the Directors deem appropriatecase may be, of such event.
(k) Except as stated above in this Section 5.3, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the Current Market Price on the date of issuance or the then applicable Conversion Price.
Appears in 1 contract
Sources: Trust Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during while any portion of the Adjustment PeriodPrincipal Amount is outstanding under this Debenture (referred to in this §5.3 as the “Time of Expiry”), the Corporation Company shall:
(i) subdivide, redivide or change its outstanding Common Shares Class B shares into a greater number of such shares; or,
(ii) reduceconsolidate, reduce or combine or consolidate its outstanding Common Shares Class B shares into a smaller lesser number of shares, or
(iii) issue Class B shares to all or substantially all of the holders of its Class B shares by way of a stock dividend or other distribution on such sharesClass B shares payable in Class B shares (other than dividends paid in the ordinary course); (any such event being hereinafter referred to as a “Capital Reorganization”), the Conversion Price shall be adjusted by multiplying the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination event referred to in §5.3(a)(i) or consolidation§5.3(a)(ii) or on the record date of such stock dividend referred to in §5.3(a)(iii), as the case may be, by a fraction, the numerator of which shall in the case of the events referred to in (i) above, be decreased in proportion to the number of Class B shares outstanding Common Shares resulting from before giving effect to such subdivision, redivision or change, or shall, in Capital Reorganization and the case denominator of the events referred to in (ii) above, which shall be increased in proportion to the number of Class B shares outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in after giving effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateCapital Reorganization. Such adjustment shall be made successively whenever any event referred Capital Reorganization shall occur and any such issue of Class B shares by way of a stock dividend or other such distribution shall be deemed to in this Section 7.1(ahave been made on the record date thereof for the purpose of calculating the number of outstanding Class B shares under §5.3(a)(i) shall occur;and §5.3(a)(ii).
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, the Corporation Company shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares Class B shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) Class B shares at a price per share (or having a conversion or exchange price per share) of less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect (as defined below) per Class B share on such record date by (any such event being hereinafter referred to as a fraction“Rights Offering”), of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the DirectorsConversion Price, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account prior approval of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rightsExchange if required, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares Class B shares outstanding on such record date multiplied by plus a number equal to the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as number determined by dividing the Directors, subject to Section 7.4 aggregate purchase price of the additional Class B shares offered for subscription or purchase by such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price per Class B share, and of which the denominator shall be the total number of Common Shares Class B shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares plus the number of the additional Class B shares offered for subscription or purchase. Any Class B shares owned by or held for the account of the Corporation or any subsidiary Company shall be deemed not to be outstanding for the purpose of any such computation. Such adjustment, if having received any required prior Exchange approval, shall be made successively whenever such a record date is fixed. To the extent that such Rights Offering is not made or any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall then be readjusted to the Conversion Price which would then have been in effect if such record date had not been fixed or if such expired rights, options or warrants had not been issued.
(c) If and whenever at any time prior to the Time of Expiry, the Company shall fix a record date for the distribution to all or substantially all the holders of its Class B shares of:
(i) shares of any class whether of the Company or any other corporation (excluding dividends paid in the ordinary course);
(ii) rights, options or warrants;
(iii) evidences of indebtedness; or
(iv) other assets or property (excluding dividends paid in the ordinary course); and if such distribution does not constitute a Capital Reorganization or a Rights Offering or does not consist of rights, options or warrants entitling the holders, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Class B shares at a price per share or having a conversion or exchange price per share of at least 95% of the Current Market Price per Class B share on such record date (any such non-excluded event being hereinafter referred to as a “Special Distribution”), the Conversion Price, subject to prior approval of the Exchange if required, shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Class B shares outstanding on such record date multiplied by the Current Market Price per Class B share determined on such record date, less the excess of the fair market value (as determined by the board of directors of the Company, which determination shall be conclusive) of such Special Distribution over the fair market value (as determined by the board of directors of the Company, which determination shall be conclusive) of the consideration therefor, if any, received by the Company and of which the denominator shall be the total number of Class B shares outstanding on such record date multiplied by such Current Market Price per Class B share. Any Class B shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purposes of any such computation. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) . The extent that such Special Distribution is not so made or to the extent that any such distribution is rights, options or warrants are not so madeexercised prior to the expiration thereof, the Conversion Price shall then be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon if such shares or expired rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;had not been issued.
(d) For the purpose of any computation under §5.3(b) or §5.3(c), the “Current Market Price” per Class B share at any record date referred to therein shall be the closing market price per share of such Class B shares on the day immediately preceding such record date on the Exchange, or, if the Class B shares are not then listed on any Exchange, then the Current Market Price will be determined by a firm of chartered accountants appointed by the Company (who may be auditors of the Company) and acceptable to the Debentureholder, acting reasonably.
(e) If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification or change of the Common Shares Class B shares into other shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or there is a consolidation, amalgamationmerger, arrangement reorganization or merger amalgamation of the Corporation Company with or into another corporation or entity that results in any other body corporate, trust, partnership or other entity, reclassification of Class B shares or a sale change of Class B shares into other shares or conveyance there is a transfer of the property and undertaking or assets of the Corporation Company as an entirety or substantially as an entirety to another person (any other body corporate, trust, partnership or other entitysuch event being hereinafter referred to as a “Reclassification of Class B shares”), the Holder shall, upon the exercise of the Conversion Right, Debentureholder shall be entitled to receive and shall accept, upon the exercise of the Debentureholder’s right of conversion at any time after the effective date thereof, in lieu of the number of Class B shares then sought to be acquired by itwhich the Debentureholder was theretofore entitled on conversion, the number kind and amount of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership money or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, property that the Holder Debentureholder would have been entitled to receive on as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyanceReclassification of Class B shares, if, on the record date or the effective date thereof, as the case may be, the Holder Debentureholder had been the registered holder of the number of Common Shares sought to be acquired by it and such Class B shares to which it the Debentureholder was theretofore entitled upon conversion, subject to acquire upon adjustment thereafter in accordance with provisions the exercise of the Conversion Right and a contemporaneous and equal adjustment shall same, as nearly as may be made to the Conversion Price;possible, as those contained in this §5.3.
(ef) in In any case in which Section 7.1(b) or 7.1(c) this §5.3 shall require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been become effective immediately after a holder of Common Shares on the applicable record date or effective dateagreement date for an event referred to herein, as the case Company may bedefer, until the occurrence of such event, issuing or transferring to the Debentureholder who converts on a Conversion Date after such record date or agreement date and before the occurrence of such event the additional Class B shares issuable upon conversion by virtue reason of the Principal Sum having then been converted into Common Shares at adjustment of the Conversion Price required by such event before giving effect to such adjustment; provided, however, that the Company shall deliver to the Debentureholder an appropriate instrument evidencing the Debentureholder’s right to receive such additional Class B shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Class B shares on and after the Date of Conversion or such later date as the Debentureholder would, but for the provisions of this §5.3(f), have become the holder of record of such additional Class B shares pursuant to §5.3(c).
(g) In case the Company after the date hereof shall take any action affecting its Class B shares, other than any action described in effect on this §5.3, which would, in the applicable record or effective dateopinion of the directors of the Company, acting reasonably materially affect the conversion rights of the Debentureholder, the Conversion Price shall be adjusted in such manner, at such time and by such action by the directors of the Company, as they may determine, acting reasonably, to be equitable to the case may be;Debentureholder and the Company in the circumstances, but subject in all cases to any necessary regulatory approval.
(fh) the The adjustments provided for in this Section 7.1 §5.3 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1§5.3, provided that, notwithstanding any other provision of this §5.3, no adjustment shall be made which would result in any increase in the Conversion Price (except upon a consolidation, reduction or combination of outstanding Class B shares) and no adjustment of the Conversion Price shall be required unless such adjustment would require a decrease of at least 1% in the Conversion Price then in effect; provided, however, that any adjustments which by reason of this subsection (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gi) ifIn the event that the Exchange or any securities regulatory body of an applicable jurisdiction does not approve (if such approval is required) a requested downward Conversion Price adjustment as provided for under this Debenture, then such adjustment shall be reduced to the maximum permitted price, and any such shortfall will be paid to the Debentureholder in cash, securities, or a combination thereof by the opinion Company, at the reasonable discretion of the Directors, the provisions board of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights directors of the Holder in accordance Company, to achieve a substantially similar economic result to the Debentureholder subject to compliance with the intent rules and purposes hereofpolicies of the Exchange or applicable securities regulatory body.
(j) In the event of any dispute arising with respect to the adjustments provided in this §5.3, such question shall be conclusively determined by a firm of chartered accountants appointed by the Directors Company (who may be auditors of the Company) and acceptable to the Debentureholder, acting reasonably. Such accountants shall make have access to all necessary records of the Company and such determination shall be binding upon the Company and the Debentureholder.
(k) Notwithstanding any other provision herein contained, no adjustment to the Conversion Price shall be made in respect of any event described in this §5.3 (other than the events referred to in paragraphs (i) and (ii) of subsection (a)), if the Debentureholder is entitled, without converting the Debenture, to participate in such provisions for event on the benefit same terms mutatis mutandis as if the Debentureholder had converted the Debenture into Class B shares prior to or on the effective date or record date of the Holder as the Directors deem appropriatesuch event.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a6.4(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 6.4.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price on such record date and of which the numerator shall be the Current Market Price on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a6.4(a) or a consolidation, amalgamation, arrangement or arrangement, share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 6.4(m). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 6.4(d), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 6.4(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 15. Any indenture entered into between the Corporation, any successor to the Corporation or such kind purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 6.4(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances.
(e) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 6.4(c) and (ii) any dividend or distribution paid exclusively in cash (the “Distributed Securities”), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the TSXV (or such other recognized stock exchange on which the Common Shares are listed for trading) and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as it so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (e) of Section 6.4 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. Notwithstanding the foregoing, if it had been a holder the securities distributed by the Corporation to all holders of its Common Shares on the applicable record date consist of capital stock of, or effective datesimilar equity interests in, as the case may be, by virtue a Subsidiary or other business of the Principal Sum having then been converted into Common Shares at Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSXV (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent and shall apply Trustee) payable to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in shareholders based on the acceptance (up to any adjustment under the provisions of this Section 7.1.
(g) if, maximum specified in the opinion terms of the Directors, the provisions issuer bid) of this Section 7.1 are all Common Shares validly tendered and not strictly applicable, or if strictly applicable would not fairly protect the rights withdrawn as of the Holder in accordance with Expiration Time (the intent Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and purposes hereof, (B) the Directors shall make any adjustment in such provisions for the benefit product of the Holder as number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the Directors deem appropriate.treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanen
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the requirements of a Recognized Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
: (i) subdivide, redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than cash dividends or distributions for which an adjustment would be made under Section 4.6(b)) (a "Common Share Reorganization”), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution, as the case may be, shall in be adjusted effective immediately after the case record date at which the holders of Common Shares are determined for the purpose of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case Share Reorganization by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such record date and by a fraction: (1) the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become so, that they were convertible or exchangeable on the record date on the basis upon which they first become convertible or exchangeable); and (2) the numerator of which shall be the number of Common Shares outstanding on such record date before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) 4.6 shall occur;. Any such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 4.6.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any applicable period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a4.6(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Corporation, any Holder shallof a Debenture who has not exercised its right of conversion prior to the date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the such Holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereofof this Indenture, as the case may be, the Holder had been the registered holder Holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 4.6(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the Holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder Holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 4.6(d) shall be a supplemental indenture entered into pursuant to the provisions of Section 12.4. Any indenture entered into between the Corporation, any successor to the Corporation or effective datesuch purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.6(d) and which shall apply to successive reclassifications, as capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. Nothing in this Section 4.6(d) shall affect or reduce the case may be, by virtue requirement for any Person to make a Change of Control Purchase Offer.
(e) If the Corporation shall make a distribution to all holders of shares in the capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 4.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.5(b) (the "Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each Holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the VWAP for the Common Shares for the five consecutive trading days immediately prior to the ex-distribution date and of which the numerator shall be the VWAP for the Common Shares for the first five consecutive trading days that occur immediately following ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately following the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of: (A) the VWAP for the Common Shares for the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on a Recognized Stock Exchange or effective date, market on which the Common Shares are then listed or quoted and (B) the product of: (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the Fair Market Value of the Spinoff Securities (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the VWAP for the Common Shares for the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a Fair Market Value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which: (i) the denominator shall be the sum of (A) the Fair Market Value of the aggregate consideration (which determination shall be conclusive evidence of such Fair Market Value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares")and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this clause (f) of Section 7.14.6 to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this clause (f).
(g) if, In any case in the opinion of the Directors, the provisions of which this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors 4.6 shall make any require that an adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.shall become effective immediately
Appears in 1 contract
Sources: Indenture (C21 Investments Inc.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) if If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding shares of Common Stock in shares of the Company's Common Stock (including, for the avoidance of doubt, a dividend or distribution that permits the recipient to elect between cash and whenever at any time during the Adjustment PeriodCommon Shares), the Corporation shall:
(i) subdivide, redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) reduce, combine or consolidate its outstanding Common Shares into a smaller number of such shares; the Conversion Price in effect at the opening of business on the effective date following the date fixed for the determination of shareholders entitled to receive such subdivision, redivision, change, reduction, combination dividend or consolidation, as the case may be, other distribution shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case reduced by multiplying the such Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of shares of the Company's Common Shares Stock outstanding immediately prior to at the close of business on the Record Date (as defined in Section 12.05(g)) fixed for such date determination and the denominator shall be the sum of such number of shares of the Company's Common Stock and the total number of shares of the Company's Common Shares outstanding Stock constituting such dividend or other distribution, such reduction to become effective immediately after such datethe opening of business on the day following the Record Date. Such adjustment shall be made successively whenever If any event referred to dividend or distribution of the type described in this Section 7.1(a12.05(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options is declared but not so paid or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record datemade, the Conversion Price shall again be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date dividend or distribution had not been declared.
(b) If the outstanding shares of the Company's Common Stock shall be subdivided or split into a greater number of shares of the Company's Common Stock or the Company issues any shares of Capital Stock in connection with a reclassification or consolidation of its Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision or split becomes effective or issuance occurs shall be proportionately reduced, and, conversely, if the outstanding shares of the Company's Common Stock shall be combined or consolidated into a smaller number of shares of the Company's Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective or issuance occurs.
(c) If the Company shall issue rights or warrants (which term shall include any rights to purchase or subscribe for Common Stock or other securities which are convertible into shares of Capital Stock of the Company to all or substantially all holders of its outstanding shares of the Company's Common Stock entitling such holders to subscribe for or purchase shares of the Company's Common Stock at a price per share less than the Current Market Price of the Company's Common Stock on the Record Date fixed for the determination of shareholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the number of shares of the Company's Common Stock outstanding at the close of business on the Record Date plus the number of shares of the Company's Common Stock which the aggregate offering price of the total number of shares of the Company's Common Stock so offered would purchase at such Current Market Price, and of which the denominator shall be the number of shares of the Company's Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of the Company's Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that shares of the Company's Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Price shall be readjusted to be the Conversion Price which would then be in effect based had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of the Company's Common Shares (Stock actually delivered. If such rights or securities convertible warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such date fixed for the determination of shareholders entitled to receive such rights or exchangeable into warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of the Company's Common Shares) actually issued upon Stock at less than such Current Market Price, and in determining the exercise aggregate offering price of such rightsshares of the Company's Common Stock, options there shall be taken into account any consideration received for such rights or warrants, as with the case may be;value of such consideration, if other than cash, to be determined by the Board of Directors.
(cd) if and whenever at any time during If the Adjustment Period the Corporation shall fix a record date for the making of a distribution Company shall, by dividend or otherwise, issue or distribute to all or substantially all the holders of its outstanding Common Shares Stock shares of any class of Capital Stock of the Company (other than any dividends or distributions to which Section 12.05(a) applies) or evidences of its indebtedness, cash or other assets (including securities, but excluding (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options rights or warrants (excluding those of a type referred to in Section 7.1(b)); 12.05(c) and (iiiii) evidences of its indebtedness or (iv) assets (including dividends and distributions paid exclusively in cash) of (the Corporationforegoing hereinafter in this Section 12.05(d) called the "Equity Securities"), then, in each such case, the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in section 12.05(g)) of the Company's Common Stock on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) on such date of the portion of the Equity Securities so distributed applicable to one share of the Company's Common Stock and the denominator shall be equal to the sum of the Current Market Price of the Company's Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the fair market value (as so determined) of the portion of the Equity Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Company's Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Securities shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of Equity Securities such holder would have received had such holder converted such Security (or portion thereof) immediately prior to such Record Date. If such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.05(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Company's Common Stock pursuant to Section 12.5(g) to the extent possible. Rights or warrants distributed by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of the Company's Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of shares of the Company's Common Stock, shall be deemed not to have been distributed for purposes of this Section 12.05(d) (and no adjustment to the Conversion Price under this Section 12.05(d) shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment to the Conversion Price under this Section 12.05(d) shall be made. If any such rights or warrants, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to subsequent events, upon the occurrence of each of which such rights or warrants shall become exercisable to purchase different securities, evidences of indebtedness or other assets, then the occurrence of each such event shall be deemed to be such date of issuance and record date with respect to new rights or warrants (and a termination or expiration of the existing rights or warrants without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event with respect thereto, that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 12.05 was made, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of the Company's Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of the Company's Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. For purposes of Sections 12.05(a) and (c) and this Section 12.05(d), any dividend or distribution to which this Section 12.05(d) is applicable that also includes shares of the Company's Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12.05(c) applies, shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of the Company's Common Stock or rights or warrants to which Section 12.05(c) applies (and any Conversion Price reduction required by this Section 12.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of the Company's Common Stock or such rights or warrants (and any further Conversion Price reduction required by Section 12.05(a) and (c) with respect to such dividend or distribution shall then be made, except that (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distribution", "Record Date fixed for such determination" and "Record Date" within the meaning of Section 12.05(a) and as "the date fixed for the determination of shareholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the shareholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 12.05(c) and (B) any shares of the Company's Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 12.05(a)).
(e) If the Company shall, by dividend or otherwise, distribute cash to all holders of its Common Stock (excluding any cash that is distributed upon a merger or consolidation to which Section 12.06 applies or as part of a distribution referred to in Section 12.05(d)) in an aggregate amount that, combined together with (1) the aggregate amount of any other such all-cash distributions to all holders of its Common Stock within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12.05(e) has been made, and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 12.05(f) has been made, exceeds 10% of the product of (x) the Current Market Price (determined as provided in Section 12.05(g)) of the Common Stock on the Record Date with respect to such distribution times (y) the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such record date date, the Conversion Price shall be reduced so that it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such record date Record Date by a fraction, fraction (i) the numerator of which the numerator shall be equal to the total number Current Market Price (determined as provided in Section 12.05(g)) of the Common Stock on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% allocable to the shares of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value Stock (as determined by the Board of Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator whose determination shall be conclusive and set forth in a resolution of the total Board of Directors) and (y) the number of shares of Common Shares Stock outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
Record Date and (ii) the denominator of which shall be equal to the Current Market Price of the Common Stock on such adjustment Record Date; provided, however, that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made successively whenever so that each holder of Securities shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of cash such a record date is fixed;
holder would have received had such holder converted such Security (iiior portion thereof) immediately prior to the extent that such Record Date. If such dividend or distribution is not so paid or made, the Conversion Price shall again be readjusted adjusted to be the Conversion Price which would then be in effect if such record date dividend or distribution had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;declared.
(f) If a tender offer made by the adjustments provided Company or any of its subsidiaries for in this Section 7.1 are cumulative, all or any portion of the Company's Common Stock expires and shall, such tender offer (as amended upon the expiration thereof) requires the payment to shareholders (based on the acceptance (up to any maximum specified in the case of adjustments to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.
(g) if, in the opinion terms of the tender offer) of Purchased Shares) of an aggregate consideration having a fair market value (as determined by the Board of Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights whose determination shall be conclusive and described in a resolution of the Holder in accordance Board of Directors) that, combined together with (1) the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit aggregate of the Holder cash plus the fair market value (as determined by the Directors deem appropriate.Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its subsidiaries for
Appears in 1 contract
Adjustment of Conversion Price. The Subject to the requirements of a Recognized Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
: (i) subdivide, redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than cash dividends or distributions for which an adjustment would be made under Section 4.6(b)) (a “Common Share Reorganization”), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution, as the case may be, shall in be adjusted effective immediately after the case record date at which the holders of Common Shares are determined for the purpose of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case Share Reorganization by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such record date and by a fraction: (1) the denominator of which shall be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become so, that they were convertible or exchangeable on the record date on the basis upon which they first become convertible or exchangeable); and (2) the numerator of which shall be the number of Common Shares outstanding on such record date before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) 4.6 shall occur;. Any such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and (d) of this Section 4.6.
(b) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry the Corporation shall fix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any applicable period, the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedper Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re- adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;be.
(d) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a4.6(a) or a consolidation, amalgamation, arrangement or arrangement, binding share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Corporation, any Holder shallof a Debenture who has not exercised its right of conversion prior to the date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the such Holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereofof this Indenture, as the case may be, the Holder had been the registered holder Holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the Conversion Price;
(e) in any case in which provisions of this Section 7.1(b) 4.6(d), the Corporation, its successor, or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options purchasing Person or warrants referred to in Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in such kind this Indenture with respect to the rights and number interests thereafter of the Holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as it would have received if it had been nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder Holder of Common Shares Debentures is entitled on the applicable record date exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 4.6(d) shall be a supplemental indenture entered into pursuant to the provisions of Section 12.4. Any indenture entered into between the Corporation, any successor to the Corporation or effective datesuch purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.6(d) and which shall apply to successive reclassifications, as capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. Nothing in this Section 4.6(d) shall affect or reduce the case may be, by virtue requirement for any Person to make a Change of Control Purchase Offer.
(e) If the Corporation shall make a distribution to all holders of shares in the capital of the Principal Sum having Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 4.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.5(b) (the “Distributed Securities”), then been in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each Holder had converted such Debenture into Common Shares at immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such ex-distribution date by a fraction of which the denominator shall be the VWAP for the Common Shares for the five consecutive trading days immediately prior to the ex-distribution date and of which the numerator shall be the VWAP for the Common Shares for the first five consecutive trading days that occur immediately following ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately following the ex-distribution date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of: (A) the VWAP for the Common Shares for the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on a Recognized Stock Exchange or effective date, market on which the Common Shares are then listed or quoted and (B) the product of: (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the Fair Market Value of the Spinoff Securities (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the VWAP for the Common Shares for the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(f) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a Fair Market Value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which: (i) the denominator shall be the sum of (A) the Fair Market Value of the aggregate consideration (which determination shall be conclusive evidence of such Fair Market Value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinations, consolidations, distributions, issues or other events resulting in any adjustment under if any. If the provisions application of this clause (f) of Section 7.1.4.6 to any issuer bid would result in a decrease in the Conversion Price, no adjustment shall be made for such issuer bid under this clause (f).
(g) if, In any case in the opinion of the Directors, the provisions of which this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors 4.6 shall make any require that an adjustment in such provisions for the benefit of the Holder as the Directors deem appropriate.shall become effective im
Appears in 1 contract
Sources: Indenture
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or,
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or
(iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a dividend or distribution, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a5.5(a) shall occur;. Any such issue of Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (b) and (c) of this Section 5.5.
(b) if If and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall fix a record date for the issuance of rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Twenty Day Weighted Average Trading Current Market Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied plus a number of Common Shares equal to the number arrived at by dividing the Twenty Day Weighted Average Trading Price on aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedCurrent Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) plus the total number of additional Common Shares owned by offered for subscription or held for purchase (or into which the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to . To the extent that any such distribution is options, rights or warrants are not so madeissued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such shares or rightsoptions, options rights or warrants or evidences of indebtedness or assets actually distributedwere included in such fraction, as the case may be;.
(dc) if If and whenever at any time during prior to the Adjustment PeriodTime of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 7.1(a5.5(a) or a consolidation, amalgamation, arrangement or arrangement, share exchange, merger of the Corporation with or into any other body corporate, trust, partnership Person or other entityentity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entityentity or a liquidation, dissolution or winding-up of the Holder shallCorporation (any such event, a “Merger Event”), any holder of a Debenture who has not exercised its right of conversion prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Conversion Rightsuch right thereafter, shall be entitled to receive and shall accept, in lieu of the number of shares Common Shares then sought to be acquired by it, such amount of cash or the number of Common Shares shares or other securities or property of the Corporation or of the body corporate, trust, partnership Person or other entity resulting from such merger, amalgamation, arrangement arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be mademade or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that the Holder such holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or arrangement, merger, share exchange, acquisition, combination, sale or conveyanceconveyance or liquidation, dissolution or winding-up, if, on the record date or the effective date thereof, as the case may be, the Holder holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made ifconversion right, subject to Section 5.5(l). If determined appropriate by the prior approval Board of applicable stock exchanges Directors, to give effect to or to evidence the Holder receives provisions of this Section 5.5(c), the rightsCorporation, options its successor, or warrants referred to in Section 7.1(b) such purchasing Person or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 5.5(c) shall be a supplemental indenture entered into pursuant to the provisions of Article 14. Any indenture entered into between the Corporation, any successor to the Corporation or such kind purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 5.5(c) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. For greater certainty, nothing in this Section 5.5(c) shall affect or reduce the requirement for any Person to make a Change of Control Offer, and notice of any transaction to which this Section 5.5(c) applies shall be given in accordance with Section 5.10.
(d) If the Corporation shall make a distribution to all or substantially all of the holders of Common Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (i) any issuance of rights or warrants for which an adjustment was made pursuant to Section 5.5(b) and (ii) any dividend or distribution paid exclusively in cash (the “Distributed Securities”), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in effect immediately preceding the record date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately preceding such record date by a fraction of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the TSX (or such other recognized stock exchange on which the Common Shares are listed for trading) and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the then fair market value (as it so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price per Common Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such holder would have received had such holder converted each Debenture on such record date. If the Board of Directors determines the fair market value of any distribution for purposes of this clause (d) of Section 5.5 by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. Notwithstanding the foregoing, if it had been a holder the securities distributed by the Corporation to all holders of its Common Shares on the applicable record date consist of capital stock of, or effective datesimilar equity interests in, as the case may be, by virtue a Subsidiary or other business of the Principal Sum having then been converted into Common Shares at Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the applicable record date fixed for the determination of shareholders entitled to receive such distribution by a fraction, the denominator of which shall be the sum of (A) the weighted average trading price of one Common Share over the 20 consecutive trading day period (the “Spinoff Valuation Period”) commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on the TSX (or effective date, such other exchange on which the Common Shares are then listed) and (B) the product of (i) the weighted average trading price (calculated in substantially the same way as the case Current Market Price is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the weighted average trading price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may be;in lieu of the foregoing adjustment elect to make adequate provision so that each holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such holder of Debentures would have received if such Debentures had been converted on the record date with respect to such distribution.
(fe) If any issuer bid made by the adjustments Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided for in this Section 7.1 are cumulativebelow) that exceeds the Current Market Price on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and shall, in the case of adjustments to the Conversion Price shall be computed adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the nearest whole cent Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall apply be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to successive subdivisionsbecome effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, redivisionsbut the Corporation is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, reductionsthe Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, combinationsif any. If the application of this clause (e) of Section 5.5 to any issuer bid would result in a decrease in the Conversion Price, consolidations, distributions, issues or other events resulting in any no adjustment shall be made for such issuer bid under the provisions this clause (e). For purposes of this Section 7.1.
(g) if5.5(e), in the opinion term “issuer bid” shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by a Subsidiary of the Directors, the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions Corporation for the benefit of the Holder as the Directors deem appropriate.Common Shares and a
Appears in 1 contract
Sources: Indenture (HEXO Corp.)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during In case the Adjustment Period, the Corporation shall:
Company shall (i) subdividepay a dividend in shares of its capital stock (other than an issuance of shares of capital stock to holders of Common Stock who have elected to receive a dividend in shares in lieu of cash), redivide or change its outstanding Common Shares into a greater number of such shares; or
(ii) subdivide its outstanding shares of Common Stock, (iii) reduce, consolidate or combine or consolidate its outstanding shares of Common Shares Stock into a smaller number of such shares; , or (iv) issue by reclassification of its shares of Common Stock any shares of the Conversion Price Company, the conversion price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidation, as the case may be, shall in the case of the events referred to in (i) above, be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or change, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price thereto shall be adjusted immediately after such record date so to that it shall equal the amount determined by multiplying the Conversion Price in effect on immediately prior to such record date by a fraction, of which the numerator shall be the total number of shares of Common Shares Stock outstanding on such date before giving effect to such division, subdivision, reduction, combination or consolidation or stock dividend and of which the denominator shall be the number of shares of Common Stock after giving effect thereto. Such adjustment shall be made successively whenever any such effective date or record date multiplied by shall occur. An adjustment made pursuant to this subsection (a) shall become effective retroactively, immediately after the Twenty Day Weighted Average Trading record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision, reduction, consolidation, combination or reclassification.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (the "Offering Price") less than the Conversion Price on such at the record datedate mentioned below, less the fair market value (as price per share at which the Notes may thereafter be converted into Common Stock shall be determined by dividing the Directors, subject to Section 7.4) price per share for which the Notes were theretofore convertible into Common Stock by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, options rights or warrantswarrants plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of shares which the aggregate Offering Price of the total number of Common Shares outstanding on shares so offered would purchase at such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such Conversion Price. Such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options rights or warrants are not exercised prior to issued, and shall become effective retroactively, immediately after the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or for the determination of shareholders entitled to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of receive such rights, options rights or warrants, as the case may be;.
(c) if and whenever at any time during In case the Adjustment Period the Corporation Company shall fix a record date for the making of a distribution distribute to all or substantially all the holders of its outstanding Common Shares Stock evidences of (i) its indebtedness, shares of any class, whether class of the Corporation Company's stock other than Common Stock or any other corporation assets (including stock excluding cash dividends), (ii) rights, options or rights or warrants to subscribe (excluding those referred to in Section 7.1(bsubsection (b) above)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, then in each such case, case the Conversion Price price per share at which the Notes may thereafter be converted into Common Stock shall be adjusted immediately after such record date so that it shall equal determined by dividing the price determined by multiplying per share for which the Conversion Price in effect on such record date Notes were theretofore convertible into Common Stock by a fraction, of which the numerator shall be the total number fair market value per share of Common Shares outstanding Stock (as defined in subsection (d) below) on the date of such record date multiplied by distribution and of which the Twenty Day Weighted Average Trading Price on denominator shall be such record datefair market value per share of the Common Stock, less the then fair market value (as determined by the Directorsboard of directors of the Company, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributedwhose determination shall be conclusive, and of described in a statement, which will have the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account applicable resolutions of the Corporation or any subsidiary shall be deemed not to be outstanding for board of directors attached thereto, filed with the purpose Company) of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, portion of the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants assets or evidences of indebtedness or assets actually distributed, as shares so distributed or of such subscription rights or warrants applicable to one share of the case may be;Common Stock. Such adjustment shall be made whenever any such distribution is made and shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such distribution.
(d) if For the purpose of any computation under subsections 8.1 and whenever 8.3(c), the fair market value per share of Common Stock at any time during date shall be (i) the Adjustment Period, there is a reclassification average of the mean of the closing bid and asked prices of the Common Shares or a capital reorganization of Stock for any 10 consecutive trading days commencing not more than 30 trading days before the Corporation other than as described in Section 7.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, the Holder shall, upon the exercise of the Conversion Right, be entitled to receive and shall accept, in lieu of the number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be maderelevant date, as reported in the case may beWall Street Journal (or, that the Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereofif not so reported, as otherwise reported by the case may beNational Association of Securities Dealers, Inc. (the Holder had been the registered holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the Conversion Right and a contemporaneous and equal adjustment shall be made to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made to the Conversion Price, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b"NASD") or the NASD's Automated Quotation ("NASDAQ")), or, (ii) in the event the Common Stock is listed on a stock exchange or on the NASDAQ National Market (or other national market system), the fair market value per share rights, options, warrants, evidences shall be the average of indebtedness the closing prices on the exchange or assets referred to in Section 7.1(con the NASDAQ National Market System (or other national market system), as the case may be, in such kind and number as it would have received if it had been a holder of Common Shares on for any 10 consecutive trading days commencing not more than 30 trading days before the applicable record date or effective relevant date, as reported in the case may beWall Street Journal (or, if not so reported, as otherwise reported by virtue the stock exchange, NASDAQ or other national market system).
(e) If the Common Stock issuable upon the conversion of the Principal Sum having then Notes shall be changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares or stock dividend provided for above, or a reorganization, merger, consolidation or sale of assets provided for in this Section 8.3), then, and in each such event, each Holder of Notes shall have the right thereafter to convert such Notes into the kind and amount of shares of Common Stock and other securities and property receivable upon such reorganization, reclassification, or other change by the Holders of the number of shares of Common Stock into which such Notes might have been converted into Common Shares at the Conversion Price in effect on the applicable record or effective dateconverted, as reasonably determined by the case may be;Company's board of directors, immediately prior to such reorganization, reclassification, or change, all subject to further adjustment as provided herein.
(f) If at any time or from time to time there shall be a capital reorganization of the Common Stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 8.3) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company's properties and assets to any other person, then, as a part of such reorganization, merger, consolidation or sale, provision shall be made as reasonably determined by the Company's board of directors so that the Holders of the Notes shall thereafter be entitled to receive upon conversion of such Notes, the number of shares of stock or other securities or property of the Company or of the successor corporation resulting from such merger or consolidation or sale, to which a Holder of Common Stock deliverable upon conversion would have been entitled on such capital reorganization, merger, consolidation or sale.
(g) The adjustments provided for in this Section 7.1 8.3 are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive divisions, subdivisions, redivisions, reductions, combinations, consolidations, distributionsissues, issues distributions or other events contemplated herein resulting in any adjustment under the provisions of this Section 7.1Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one (1) percent in the Conversion Price then in effect; provided, however, that any adjustments which by reason of this subsection (g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(gh) ifUpon each adjustment of the Conversion Price, the Company shall give prompt written notice thereof addressed to the registered Holders at the address of such Holders as shown on the records of the Company, which notice shall state the Conversion Price resulting from such adjustment and the increase or decrease, if any, in the opinion number of shares issuable upon the conversion of such Holder's Notes, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
(i) In the event of any question arising with respect to the adjustments provided for in this Section 8.3, such question shall be conclusively determined by a firm of independent certified public accountants appointed by the Company (who may be the auditors of the Directors, Company) and acceptable to the provisions holders of this Section 7.1 are not strictly applicable, or if strictly applicable would not fairly protect the rights at least 50% of the Holder in accordance with the intent and purposes hereof, the Directors shall make any adjustment in such provisions for the benefit principal amount of the Holder as Notes outstanding; such accountants shall have access to all necessary records of the Directors deem appropriateCompany and such determination shall be binding upon the Company, and the Note Holders.
Appears in 1 contract
Sources: Subscription and Purchase Agreement (Renaissance Entertainment Corp)
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time during prior to the Adjustment Period, Time of Expiry the Corporation shall:
shall (i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such shares; , or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends in the form of Common Shares in lieu of cash dividends paid in the ordinary course on the Common Shares), the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Common Shares by way of a stock dividend, as the case may be, shall in the case of any of the events referred to in (i) above, and (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend, or shall, in the case of any of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such dateconsolidation. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(asubsection 4.3(a) shall occur;.
(b) if If and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that any such rights, options or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number Time of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation or any other corporation (including stock dividends), (ii) rights, options or warrants (excluding those referred to in Section 7.1(b)); (iii) evidences of its indebtedness or (iv) assets (including cash) of the Corporation, then, in each such case, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common Shares owned by or held for the account of the Corporation or any subsidiary shall be deemed not to be outstanding for the purpose of any such computation;
(ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) to the extent that such distribution is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be;
(d) if and whenever at any time during the Adjustment PeriodExpiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation (other than as described in Section 7.1(asubsection 4.3(a)) of the Common Shares or a consolidation, in case of any amalgamation, arrangement consolidation or merger of the Corporation with or into any other body corporate, trust, partnership or other entitycorporation, or a in the case of any sale or conveyance of the property properties and assets of the Corporation Corporation, as an entirety or substantially as as, an entirety to any other body corporatecorporation, trustthe Conversion Price shall be adjusted so that each Debenture shall, partnership after such reclassification, change, amalgamation, consolidation, merger or sale, be convertible into the number of shares or the number, kind or amount of other securities or property of the Corporation, or such continuing, successor or purchaser corporation, as the case may be, which the holder thereof would have been entitled to receive as a result of such reclassification, change, amalgamation, consolidation, merger or sale if on the effective date thereof he had been the holder of the number of Common Shares, Units or other entitysecurities into which the Debenture was convertible prior to the effective date of such reclassification, change, amalgamation, consolidation, merger or sale. No such reclassification, change, amalgamation, consolidation, merger or sale shall be carried into effect unless, in the Holder shall, upon the exercise opinion of the Conversion Rightdirectors of the Corporation, all necessary steps shall have been taken to ensure that the holders shall thereafter be entitled to receive and shall accept, in lieu of the such number of shares then sought to be acquired by it, the number of Common Shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidationCorporation, or to which such sale continuing, successor or conveyance may be madepurchaser corporation, as the case may be, subject to adjustment thereafter in accordance with provisions similar, as nearly as may be, to those contained in this Section 4.3;
(c) If holders of Debentures would otherwise be entitled to receive, upon conversion of the Debentures, after a reclassification, change, amalgamation, consolidation, merger or sale, any property (including cash) or securities that would not constitute “prescribed securities” for the Holder would have been purposes of clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada), as it applied for the 2007 taxation year, (referred to herein as “Ineligible Consideration”), such holders shall not be entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement Ineligible Consideration but the Corporation or merger, sale any successor or conveyance, if, on the record date or the effective date thereofacquirer, as the case may be, shall have the Holder had been right (at the registered holder sole option of the number Corporation or any successor or acquirer, as the case may be) to deliver either such Ineligible Consideration or prescribed securities for the purposes of clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada), as it applied for the 2007 taxation year, with a market value equal to the market value of such Ineligible Consideration. In general, prescribed securities would include Common Shares sought to be acquired and other shares which are not redeemable by it and to which it was entitled to acquire upon the exercise holder within five years of the Conversion Right and a contemporaneous and equal adjustment date of issuance of the Debentures. The Corporation shall be made give notice to the Conversion Price;
(e) in any case in which Section 7.1(b) or 7.1(c) require that an adjustment be made holders of Debentures at least 30 days prior to the Conversion Priceeffective date of such transaction in writing and by release to a business newswire stating the consideration into which the Debentures will be convertible after the effective date of such transaction. After such notice, no such adjustment shall be made if, subject to the prior approval of applicable stock exchanges the Holder receives the rights, options or warrants referred to in Section 7.1(b) Corporation or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c)successor acquirer, as the case may be, may not change the consideration to be delivered upon conversion of the Debenture except in accordance with any other provision of this Indenture.
(d) in any case in which this Section 4.3 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such kind and number as it would have received if it had been a event, issuing to the holder of Common Shares on the applicable any Debenture converted after such record date and before the occurrence of such event the additional Common Shares, Units or effective dateother securities, as the case may be, issuable upon such conversion by virtue reason of the Principal Sum having then been converted into adjustment required by such event; provided, however, that the Corporation shall deliver to such Debentureholder an appropriate instrument evidencing such Debentureholder’s right to receive such additional Common Shares at the Conversion Price in effect on the applicable record Shares, Units or effective dateother securities, as the case may be, upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of Debentureholders of record of Common Shares on and after the Debenture Exercise Date or such later date as such Debentureholder would, but for the provisions of this subsection 4.3(c), have become the holder of record of such additional Common Shares pursuant to subsection 4.2(b);
(fe) the adjustments provided for in this Section 7.1 4.3 are cumulative, cumulative and shall, in the case of adjustments to the Conversion Price will be computed to the nearest whole one tenth of one cent and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 7.1.4.3, provided that, notwithstanding any other provision of this Section 4.3, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase of at least 1% in the Conversion Price then in effect; provided however, that any adjustments which by reason of this subsection 4.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment;
(f) for the purpose of calculating the number of Common Shares of the Corporation outstanding, Common Shares owned by or for the benefit of the Corporation shall not be counted;
(g) ifin the event of any question arising with respect to the adjustments provided in this Section 4.3, such questions shall be conclusively determined by the Corporation’s Auditors who shall have access to all necessary records of the Corporation, and such determination shall be binding upon the Corporation, the Trustee, and the Debentureholders;
(h) in case the Corporation shall take any action affecting the Common Shares other than action described in this Section 4.3, which in the opinion of the Directors, directors of the provisions of this Section 7.1 are not strictly applicable, or if strictly applicable Corporation would not fairly protect materially adversely affect the rights of the Holder in accordance with the intent and purposes hereofDebentureholders, the Directors Conversion Price shall make any be adjusted in such manner and at such time, by action of the directors of the Corporation, as the board of the directors of the Corporation may reasonably determine to be equitable in the circumstances after consultation and after taking into consideration the advice of its outside legal advisors;
(i) no adjustment in such provisions for the benefit Conversion Price shall be made in respect of any event described in subsection (a)(iii), if all of the Holder holders of the Debentures are entitled to participate in such event on the same terms mutatis mutandis as if they had converted their Debentures prior to the effective date or record date, as the Directors deem appropriatecase may be, of such event; and
(j) except as stated above in this Section 4.3, no adjustment will be made in the Conversion Price for any Debentures as a result of the issuance of Common Shares at less than the then applicable Conversion Price.
Appears in 1 contract
Adjustment of Conversion Price. The Optional Conversion Price or Forced Conversion Price, as applicable (each of which is referred to in this Section 4.5 as the “Conversion Price”), in effect at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time during prior to the Adjustment PeriodMaturity Date, the Corporation Company shall:
(i) subdivide, subdivide or redivide or change its the outstanding Common Shares into a greater number of such shares; orShares;
(ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of such sharesShares;
(iii) issue Shares (or securities convertible into or exchangeable for Shares) to the holders of all or substantially all of the outstanding Shares by way of stock dividend; or
(iv) make a distribution on its outstanding Shares payable in Shares or securities exchangeable for or convertible into Shares, the Conversion Price in effect on the effective date of such subdivision, redivision, change, reduction, combination or consolidationconsolidation or on the record date for such issue of Shares (or securities convertible into or exchangeable for Shares) by way of a stock dividend or other distribution, as the case may be, shall shall, in the case of the events referred to in Sections 4.5(a)(i), (iiii) and (iv) above, be decreased in proportion to the increase in the number of outstanding Common Shares resulting from such subdivision, redivision or changedividend (including, in the case where securities convertible into or exchangeable for Shares are issued, the number of Shares that would have been outstanding had such securities been converted into or exchanged for Shares on such effective or record date) or shall, in the case of the events referred to in (iiSection 4.5(a)(ii) above, be increased in proportion to the decrease in the number of outstanding Common Shares resulting from such reduction, combination or consolidation in each case by multiplying the Conversion Price in effect on such effective date by a fraction of which the numerator shall be the total number of Common Shares outstanding immediately prior to such date and the denominator shall be the total number of Common Shares outstanding immediately after such or record date. Such adjustment shall be made successively whenever any event referred to in this Section 7.1(a4.5(a) shall occur;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance . Any such issue of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible into or exchangeable into Common for Shares) at by way of a price per share (stock dividend or having a conversion or exchange price per share) less than the Twenty Day Weighted Average Trading Price on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Price on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4) of such rights, options or warrants, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that
(i) any Common Shares owned by or held for the account of the corporation or any subsidiary other distribution shall be deemed not to be outstanding have been made on the record date for the stock dividend or other distribution for the purpose of any such computation;
calculating the number of outstanding Shares under Sections 4.5(b) and (ii) such adjustment shall be made successively whenever such a record date is fixed;
(iii) g); to the extent that any such rights, options or warrants securities are not exercised converted into or exchanged for Shares prior to the expiration thereofof the conversion or exchange right, the Conversion Price shall be readjusted to effective as at the Conversion Price which would then be in effect if date of such record date had not been fixed or expiration to the Conversion Price which would then be in effect based upon the number of Common Shares actually issued on the exercise of such conversion or exchange right.
(b) as the “Rights Period”), to subscribe for or purchase Shares (or securities convertible into or exchangeable into Common for Shares) actually issued upon (such subscription price per Share (inclusive of any cost of acquisition of securities exchangeable for or convertible into Shares in addition to any direct cost of Shares) being referred to in this Section 4.5(b) as the exercise “Per Share Cost”), the Borrowers shall give written notice to the Purchaser with respect thereto (any of such events herein referred to as a “Rights Offering”), and the Purchaser shall have fifteen (15) days after receipt of such notice (but prior to the Maturity Date or the date fixed for redemption of this Note) to elect to convert any or all of the Principal Amount of this Note into Shares at the then applicable Conversion Price and otherwise on terms and conditions set out in this Note. If the Purchaser validly elects to convert any or all of the Principal Amount of this Note, such conversion shall occur immediately prior to the record date for the issuance of such rights, options or warrants. If the Purchaser elects not to convert any of the Principal Amount of this Note, there shall continue to be an adjustment to the Conversion Price as a result of the issuance of such rights, options or warrants, in the manner hereinafter provided. The Conversion Price will be adjusted effective immediately after the end of the Rights Period to a price determined by multiplying the Conversion Price in effect immediately prior to the end of the Rights Period by a fraction:
(i) the numerator of which is the aggregate of:
(A) the number of Shares outstanding as of the record date for the Rights Offering; and
(B) the number determined by dividing the product of the Per Share Cost and:
1. where the event giving rise to the application of this Section 4.5(b) was the issue of rights, options or warrants to the holders of Shares under which such holders are entitled to subscribe for or purchase additional Shares, the number of Shares so subscribed for or purchased during the Rights Period, or
2. where the event giving rise to the application of this Section 4.5(b) was the issue of rights, options or warrants to the holders of Shares under which such holders are entitled to subscribe for or purchase securities exchangeable for or convertible into Shares, the number of Shares for which those securities so subscribed for or purchased during the Rights Period could have been exchanged or into which they could have been converted during the Rights Period, by the trading price of the Shares on the Canadian Securities Exchange (or such other recognized stock exchange or quotation on which the Shares are listed for trading) (the “Current Market Price”) as of the record date for the Rights Offering; and
(ii) the denominator of which is:
(A) in the case described in subparagraph 4.5(b)(i)(B)(1), the number of Shares outstanding, or
(B) in the case described in subparagraph 4.5(b)(i)(B)(2), the number of Shares that would be outstanding if all the Shares described in subparagraph 4.5(b)(i)(B)(2) had been issued, as at the end of the Rights Period.
(c) Any Shares owned by or held for the account of the Company or any subsidiary (as defined in the Securities Act (British Columbia)) of the Company will be deemed not to be outstanding for the purpose of any such computation.
(d) If by the terms of the rights, options or warrants referred to in Section 4.5(b), there is more than one purchase, conversion or exchange price per Share, the aggregate price of the total number of additional Shares offered for subscription or purchase, or the aggregate conversion or exchange price of the convertible securities so offered, will be calculated for purposes of the adjustment on the basis of:
(1) the lowest purchase, conversion or exchange price per Share, as the case may be;, if such price is applicable to all Shares which are subject to the rights, options or warrants, and
(c2) the average purchase, conversion or exchange price per Share, as the case may be, if the applicable price is determined by reference to the number of Shares acquired.
(e) To the extent that any adjustment in the Conversion Price occurs pursuant to this Section 4.5(b) as a result of the fixing by the Company of a record date for the distribution of rights, options or warrants referred to in this Section 4.5(b), the Conversion Price will be readjusted immediately after the expiration of any relevant exchange, conversion or exercise right to the Conversion Price which would then be in effect based upon the number of Shares actually issued and remaining issuable after such expiration, and will be further readjusted in such manner upon expiration of any further such right.
(f) [Intentionally Omitted].
(g) If and whenever at any time during prior to the Adjustment Period Maturity Date, the Corporation Company shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) shares of any class, whether of the Corporation class other than Shares (or any other corporation (including stock dividendsthan securities convertible into or exchangeable for Shares), or (ii) rights, options or warrants (excluding those other than rights, options or warrants referred to in Section 7.1(b4.5(b)); , or (iii) evidences of its indebtedness indebtedness, or (iv) assets (including cashin each case, other than dividends paid in the ordinary course) of the Corporation, then, in each such case, the Borrowers shall give written notice to the Purchaser with respect thereto, and the Purchaser shall have fifteen (15) days after receipt of such notice to elect to convert any or all of the Principal Amount of this Note into Shares at the then applicable Conversion Price and otherwise on terms and conditions set out in this Note. If the Purchaser elects to convert any or all of the Principal Amount of this Note, such conversion shall occur immediately prior to the record date for the making of such distribution. If the Purchaser elects not to convert any of the Principal Amount of this Note, there shall continue to be an adjustment to the Conversion Price as a result of the making of such distribution (herein referred to as a “Special Distribution”), determined in the manner hereafter set out in Section 4.5(h). In this Section 4.5(g) the term “dividends paid in the ordinary course” shall include the value of any securities or other property or assets distributed in lieu of cash dividends paid in the ordinary course at the option of shareholders.
(h) In circumstances described in Section 4.5(g), the Conversion Price will be adjusted effective immediately after such record date so that it shall equal the to a price determined by multiplying the Conversion Price in effect on such record date by a fraction, :
(1) the numerator of which is:
(A) the numerator shall be product of the total number of Common Shares outstanding on such record date and the Current Market Price of the Shares on such record date; less
(B) the aggregate fair market value (as determined by action by the directors of the Company, acting reasonably) to the holders of the Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and
(2) the denominator of which is the number of Shares outstanding on such record date multiplied by the Twenty Day Weighted Average Trading Current Market Price of the Shares on such record date, less the fair market value (as determined by the Directors, subject to Section 7.4 of such shares, rights, options, warrants, evidences of indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Twenty Day Weighted Average Trading Price provided that:
(i) Common . Any Shares owned by or held for the account of the Corporation Company or any subsidiary shall (as defined in the Securities Act (British Columbia)) of the Company will be deemed not to be outstanding for the purpose of any such computation;.
(iii) such adjustment shall be made successively whenever such a record date is fixed;[Intentionally Omitted]
(iiij) In the case of any reclassification of, or other change in, the outstanding Shares (other than a change referred to the extent that such distribution is not so madein Section 4.5(a), Section 4.5(b), or Section 4.5(g) or hereof), the Conversion Price shall be readjusted to the Conversion Price which would then be adjusted in effect such manner, if any, and at such record date had not been fixed or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributedtime, as the case Board of Directors of the Company determines to be appropriate on a basis consistent with the intent of this Section 4.5(b); provided that if at any time a dispute arises with respect to adjustments provided for in this Section 4.5(j), such dispute will be conclusively determined by the auditors of the Borrowers or if they are unable or unwilling to act, by such other firm of independent chartered accountants as may be;be selected by action by the directors of the Company, acting reasonably, and any such determination will be binding on the Borrowers and the Purchaser.
(dk) if The Borrowers will provide such auditors or accountants with access to all necessary records of the Borrowers. If and whenever at any time during after the Adjustment Period, date hereof there is a reclassification or redesignation of the Common Shares outstanding at any time or a capital reorganization change of the Corporation Shares into other shares or into other securities (other than as described set out in Section 7.1(a4.5(a), (b), (g) or (i)), or a consolidation, amalgamation, arrangement amalgamation or merger of the Corporation Company with or into any other body corporate, trust, partnership corporation or other entityentity (other than a consolidation, amalgamation or merger which does not result in any reclassification or redesignation of the outstanding Shares or a sale or conveyance change of the property Shares into other shares and other than as set forth in 4.5(i) or a transfer of the undertaking or assets of the Corporation Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership another corporation or other entityentity (any of such events being called a “Capital Reorganization”), the Holder shallPurchaser, upon the exercise exercising of the Optional Conversion Right, after the effective date of such Capital Reorganization, will be entitled to receive and shall accept, in lieu of the number of shares then sought Shares to be acquired by itwhich the Purchaser was theretofore entitled upon such exercise, the aggregate number of Common Shares or shares, other securities or property of other property, if any, which the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement or consolidation, or to which such sale or conveyance may be made, as the case may be, that the Holder Purchaser would have been entitled to receive on as a result of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, Capital Reorganization if, on the record date or the effective date thereof, as the case may be, the Holder Purchaser had been the registered holder of the number of Common Shares sought to be acquired by it and to which it such Purchaser was theretofore entitled upon exercise of the Optional Conversion Right. If determined appropriate by action of the directors of the Company, appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Section 4.5(b) with respect to acquire the rights and interests thereafter of the Purchaser to the end that the provisions set forth in this Section 4.5(b) will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the exercise of the Optional Conversion Right and a contemporaneous and equal Right. Any such adjustment shall must be made by and set forth in an amendment to this Note approved by action by the Conversion Price;directors of the Company, acting reasonably, and will for all purposes be conclusively deemed to be an appropriate adjustment.
(el) in In any case in which this Section 7.1(b4.5(b) or 7.1(c) shall require that an adjustment be made shall become effective immediately after a record date for an event referred to herein, the Company may defer, until the occurrence of such event, issuing to the Conversion PricePurchaser before the occurrence of such event, no the additional Shares issuable upon such conversion by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Borrowers shall deliver to the Purchaser an appropriate instrument evidencing the Purchaser’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment shall be and the right to receive any distributions made ifon such additional Shares declared in favour of holders of record of Shares on and after the Issue Date or such later date as the Purchaser would, subject to but for the prior approval provisions of applicable stock exchanges the Holder receives the rights, options or warrants referred to in this Section 7.1(b) or the share rights, options, warrants, evidences of indebtedness or assets referred to in Section 7.1(c4.5(l), as have become the case may be, in such kind and number as it would have received if it had been a holder of Common such additional Shares on the applicable record date or effective date, as the case may be, by virtue of the Principal Sum having then been converted into Common Shares at the Conversion Price in effect on the applicable record or effective date, as the case may be;pursuant to Section 4.5(b).
(fm) the The adjustments provided for in this Section 7.1 4.5(b) are cumulative, and shall, in the case of adjustments to the Conversion Price be computed to the nearest whole cent cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events event resulting in any adjustment under the provisions of this Section 7.1.
Section, provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent (g1%) if, in the opinion of the DirectorsConversion Price then in effect; provided, the provisions however, that any adjustments which by reason of this Section 7.1 4.5(m) are not strictly applicablerequired to be made shall be carried forward and taken into account in any subsequent adjustment. No Conversion Price adjustment will be made to the extent that the Company makes an equivalent distribution to holders of Notes in respect of such Notes. No adjustment to the Conversion Price will be made for distributions or dividends on Shares issuable upon conversion of Notes that have been surrendered for conversion, or if strictly provided that holders converting their Notes shall be entitled to receive, in addition to the applicable would not fairly protect the rights number of the Holder Shares, accrued and unpaid interest payable in accordance with the intent cash from, and purposes hereofincluding, the Directors shall make any adjustment in such provisions for most recent interest payment date to, but excluding, the benefit date of the Holder as the Directors deem appropriateconversion.
Appears in 1 contract
Sources: Securities Purchase Agreement (MedMen Enterprises, Inc.)