ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants shall be subject to adjustment from time to time as follows: (a) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall: (i) subdivide its outstanding Common Shares into a greater number of shares; or (ii) consolidate its outstanding Common Shares into a smaller number of shares; the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which: (A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and (B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date, (a) shall occur (and all adjustments in this Subsection are cumulative); (b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares or any securities of the Company including rights, options or warrants to acquire shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments; (c) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company other than as described in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Common Shares receivable upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances; (d) in any case in which this Section 4.1 shall require that an adjustment 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 holder of any Special Warrant exercising or deemed to be exercising his subscription rights after such record date the additional Common Shares or other securities or property issuable upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares or other securities or property, 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 or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder; (e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise or deemed exercise of a Special Warrant;
Appears in 1 contract
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the The subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company Corporation shall:
(i) subdivide its outstanding Common Shares into a greater number of shares; or
(ii) consolidate its outstanding Common Shares into a smaller number of shares; the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company Corporation shall issue or distribute to the holders of all or substantially all of the CompanyCorporation's outstanding Common Shares or any securities of the Company Corporation including rights, options or warrants to acquire shares of the Company Corporation or securities convertible into or exchangeable for shares of the Company Corporation or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;
(c) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company Corporation other than as described in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company 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 Company Corporation as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of shares or other securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Common Shares receivable upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of shares or other securities and property. The CompanyCorporation, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company Corporation and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the CompanyCorporation, any successor to the Company Corporation or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(d) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company Corporation may defer, until the occurrence of such event, issuing to the holder of any Special Warrant exercising or deemed to be exercising his subscription rights after such record date the additional Common Shares or other securities or property issuable upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares or Shares, other securities or property, 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 or Shares, other securities or property, as the case may be, declared in favour of holders of record of Common Shares or Shares, other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or Shares, other securities or property, as the case may be, pursuant to the exercise or deemed due exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or and other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise or deemed exercise of a Special Warrant;
Appears in 1 contract
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject 6.1 In the event of any consolidation or sub-division of the share capital of the Company or any allotment of Ordinary Shares pursuant to Section 4.1Aa capitalisation of profits or reserves (including, without prejudice to the generality of the foregoing, share premium account) taking place after the date of this Instrument, the subscription rights attaching number of Ordinary Shares which may be subscribed on exercise of a Warrant shall be adjusted in due proportion.
6.2 Subject as hereinafter provided, the number of Ordinary Shares which may be subscribed on exercise of a Warrant and/or the Subscription Price shall also be varied in such manner as the Board and the Warrantholders may agree or (failing such agreement) as the Auditors shall at the request of either party confirm in writing to the Special Warrants with respect to the Common Shares issuable be in their opinion fair and reasonable upon the exercise or deemed exercise happening of any of the Special Warrants shall be subject to adjustment from time to time as followsfollowing events:
(a) if and whenever the offer or grant of warrants, options or other rights to subscribe for Ordinary Shares (other than warrants, options or other rights granted pursuant to any employees' share scheme or options granted to any executive director of the Company) at any time from a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the dealing day immediately preceding the date hereof and prior to the Expiry Time, the Company shall:
(i) subdivide its outstanding Common Shares into a greater number of shares; or
(ii) consolidate its outstanding Common Shares into a smaller number of shares; the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case announcement of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion offer or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative)grant;
(b) if and whenever at the issue of securities which by their terms are convertible into, or exchangeable for, or carry rights of subscription for, Ordinary Shares (excluding warrants, options or other rights granted pursuant to any time from employees' share scheme or options granted to any executive director of the Company) where the consideration per Ordinary Share receivable therefrom by the Company upon conversion, exchange or subscription is less than 95 per cent. of the Current Market Price per Ordinary Share on the dealing day immediately preceding the date hereof and prior of announcement of the issue, or the modification of the rights of conversion, exchange or subscription relating to such securities so that following such modification the Expiry Timeconsideration per Ordinary Share receivable by the Company upon conversion, exchange or subscription is less than 95 per cent. of the Current Market Price per Ordinary Share on the dealing day immediately preceding the date of announcement of the proposals for such modification; and
(c) the issue wholly for cash of Ordinary Shares (other than Ordinary Shares issued on exercise of any rights to acquire Ordinary Shares or upon the exercise of the Warrants or any other securities which by their terms are convertible into, or exchangeable for, or carry rights of subscription for, Ordinary Shares, or Ordinary Shares issued pursuant to any employees' share scheme or options granted to any executive director of the Company) at a price per Ordinary Share which is less than 95 per cent of the Current Market Price per Ordinary Share on the dealing day immediately preceding the date of announcement of the issue; PROVIDED THAT no such adjustment shall be made in respect of any offer, grant or issue referred to in sub-paragraphs (a), (b) or (c) above unless the Company fails to make or to procure that there is made a like offer, grant or issue to Warrantholders in accordance with Condition 6.5.
6.3 The Company will forthwith notify the Warrantholders in writing of any adjustments in the number of Ordinary Shares which may be subscribed on exercise of a Warrant and/or the Subscription Price pursuant to this Condition 6.
6.4 If the Company intends to make any distribution to all or the majority of the holders of the Ordinary Shares on the Register on a Record Date on which any Warrant remains outstanding, the Company shall notify the Warrantholders not less than 28 days in advance of the relevant Record Date.
6.5 In the case of an offer, grant, issue or distribute invitation, which does not fall within Condition 6.1, to the holders of all or substantially all the majority of the Company's outstanding Common Shares or any securities of the Company including rights, options or warrants to acquire shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;
(c) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company other than as described in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Common Shares receivable upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled Ordinary Shares on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be Register on a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, Record Date on which any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(d) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to hereinWarrant remains outstanding, the Company may defershall make, until or use its reasonable endeavours to procure that there is made, a like offer, grant, issue or invitation at the occurrence of such event, issuing same time to the holder of any Special Warrant exercising or deemed to be exercising each Warrantholder as if his subscription rights after had been exercised in full with effect immediately before such record date Record Date. If the additional Common Shares Company is unable to make or other securities procure that there is made a like offer, grant, issue or property issuable upon such exercise or deemed exercise by reason of invitation to the adjustment required by such event; providedWarrantholders, however, that the Company shall deliver give the Warrantholders the opportunity to such holder an appropriate instrument evidencing such holder's right exercise the Warrants in order to receive such additional Common Shares or other securities or property, 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 or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise or deemed exercise of a Special Warrant;participate therein.
Appears in 1 contract
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the The subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall:
(i) subdivide its outstanding Common Shares into a greater number of shares; or
(ii) consolidate its outstanding Common Shares into a smaller number of shares; the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares or any securities of the Company including rights, options or warrants to acquire shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;
(c) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company other than as described in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Common Shares receivable upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(d) in any case in which this Section 4.1 shall require that an adjustment 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 holder of any Special Warrant exercising or deemed to be exercising his subscription rights after such record date the additional Common Shares or other securities or property issuable upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares or other securities or property, 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 or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise or deemed exercise of a Special Warrant;
Appears in 1 contract
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, The Subscription Price in effect and the subscription rights attaching to number and type of securities purchasable under the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants Warrant at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time from the date hereof following April 17, 2002 and prior to the Expiry Time, the Company shall:
Corporation shall (i) subdivide its or redivide the outstanding Common Shares into a greater number of shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of shares; the number of Common , or (iii) issue Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common other Participating Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares by way of a stock dividend, the Subscription Price in effect on the effective date of any such event shall be adjusted immediately after such event or on the record date for such issue of Shares or any securities other Participating Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the Subscription Price in effect immediately prior to such event by a fraction, of which the numerator shall be the total number of Shares and other Participating Shares outstanding immediately prior to such event and of which the denominator shall be the total number of Shares and other Participating Shares outstanding immediately after such event; and the number of Shares which the Holder is entitled to purchase under the terms of this Warrant certificate shall be adjusted at the same time by multiplying the number by the inverse of the Company including aforesaid fraction; such adjustments shall be made successively whenever any event referred to in this subsection (a) shall occur; any such issue of Shares or other Participating 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 Shares or other Participating Shares immediately after such event under this subsection (a) and subsection (e) of this Section.
(b) If and whenever at any time following April 17, 2002 and prior to the Expiry Time the Corporation shall fix a record date for the issuance of rights, options or warrants to acquire shares all or substantially all of the Company holders of the outstanding Shares, entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, the Subscription Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Subscription Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Shares or other Participating 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, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares or other Participating Shares offered for subscription or purchase (or into which the convertible or exchangeable securities so offered are convertible or exchangeable); any Shares owned by or held for the account of the Corporation or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; and the number of Shares which the Holder is entitled to purchase under the terms of this Warrant certificate shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are, not exercised prior to the expiration thereof, the Subscription Price and the exchange rate shall then be re-adjusted to the Subscription Price and the exchange rate which would then be in effect based upon the number and aggregate price of Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be.
(c) If and whenever at any time following April 17, 2002 and prior to the Expiry Time 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 Shares or Participating Shares, other than shares distributed to holders of Shares pursuant to their exercise of options to receive dividends in the Company form of such shares in lieu of Dividends Paid in the Ordinary Course on the Shares and other than the issue of Shares or property other Participating Shares to the holders of all or substantially all of the outstanding Shares by way of a stock dividend, or (ii) rights, options or Warrants (excluding rights exercisable for 45 days or less) or (iii) evidences of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of other corporations, then, in each such case, the Subscription Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Subscription Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price per Share on such record date, less the fair market value (as determined by the board of directors of the Corporation, acting reasonably, which determination, absent manifest error, shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets including cash so distributed, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by such Current Market Price per Share; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; and the number of Shares which the Holder is entitled to purchase under the terms of this Warrant certificate shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Subscription Price and the exchange rate shall be re-adjusted to the Subscription Price and the exchange rate which would then be in effect if such record date had not been fixed or to the Subscription Price and the exchange rate which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtednessindebtedness or assets actually distributed, as the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holdercase may be, and in clause (iv) the term “Dividends Paid in the Ordinary Course” shall accept for include the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount value of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon or assets distributed in lieu of cash Dividends Paid in the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;Ordinary Course.
(cd) if If and whenever at any time from the date hereof following April 17, 2002 and prior to the Expiry Time, Time there is a reclassification of the Common Shares at any time outstanding or a change of the Shares into other shares or a capital reorganization of the Company other than as described Corporation not covered in Subsections 4.1(a) or subsection (ba) or a consolidation, amalgamation or merger of the Company Corporation with or into any other body corporate, trust, partnership or other entity, corporation or a sale or conveyance of the property and assets of the Company Corporation as an entirety or substantially as an entiretyentirety to any other person, any Special Warrantholder who a Holder holding the Warrant under this Warrant certificate which has not been exercised his right of subscription prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyanceshall thereafter, upon the exercise or deemed exercise of such right thereafterthe Warrant, shall be entitled to receive and shall accept in lieu of the kind and number of Shares, as then constituted, to which the Holder was previously entitled upon exercise of the Warrant, but for the same aggregate consideration payable therefor, the number of shares or other securities or property of the Corporation or of the corporation resulting from such reclassification, consolidation, amalgamation or merger or of the person to which such sale may be made, as the case may be, that such Special Warrantholder Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder Holder had been the registered holder of the number of Common Shares receivable to which the Holder was previously entitled upon the exercise or deemed due exercise of Special Warrants then heldthe Warrant; and in any case, subject to if necessary, appropriate adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement which shall provide, to the extent possible, for made in the application of the provisions set forth in this Indenture Warrant certificate with respect to the rights and interests thereafter of the Special Warrantholders Holder to the end that the provisions set forth in this Indenture Warrant certificate shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect in relation to any shares other or securities or property to which a Special Warrantholder is the Holder may be entitled on upon the exercise or deemed exercise of his Special Warrants the Warrant thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;.
(de) in In any case in which this Section 4.1 Warrant certificate shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company Corporation may defer, until the occurrence of such event, issuing to the holder Holder of any Special the Warrant exercising or deemed to be exercising his subscription rights if exercised after such record date and before the additional Common Shares or occurrence of such event the kind and amount of shares, other securities or property issuable to which it would be entitled upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company Corporation shall deliver to such holder the Holder an appropriate instrument evidencing such holder's the Holder’s right to receive such additional Common Shares or the kind and amount of shares, other securities or property, as the case may be, property to which it would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, constituted from time to time on and after the date of exercise or deemed exercise or such later date as such holder would the Holder would, but for the provisions of this Subsection 4.1(dsubsection(e), have received, or become the holder of record of entitled to receive, on such additional Common Shares exercise.
(f) The adjustments provided for in this Warrant certificate are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other securities events resulting in any adjustment under the provisions of this Warrant certificate provided that, notwithstanding any other provision of this Section, no adjustment of the Subscription Price or propertynumber of Shares, as then constituted, purchasable shall be required unless such adjustment would require an increase or decrease, of at least 1% in the case Subscription Price or the number of Shares, as then constituted, purchasable 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) In the event of any question arising with respect to the adjustments provided in this Warrant certificate, such question shall, absent manifest error, be conclusively determined by a firm of chartered accountants appointed by the Corporation and acceptable to the Holder (who may bebe the auditors of the Corporation) with the assistance of legal counsel, who may be legal counsel to the Corporation; such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation and the Holder.
(h) As a condition precedent to the taking of any action which would require an adjustment in any of the subscription rights pursuant to the exercise or deemed exercise terms of the Special Warrants held by such holder;
(e) after any adjustment pursuant Warrant, including the number of Shares which are to this Section 4.1be received upon the exercise thereof, the term "Common Shares" where used Corporation shall take any action which may, in this Indenture shall the opinion of legal counsel, be interpreted to mean securities of any class or classes which, necessary in order that the Corporation may validly and legally issue as a result of such adjustment fully paid and non-assessable all prior adjustments pursuant to this Section 4.1, a Special Warrantholder the Shares which the Holder is entitled to receive upon on the full exercise or deemed exercise thereof in accordance with the provisions hereof.
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Warrant certificate, which in the opinion of such holder's Special Warrantsthe board of directors of the Corporation would materially affect the rights of Holder, and the Subscription Price and/or the number of Common Shares indicated in any which may be acquired upon exercise made pursuant to a Special of the Warrant shall be interpreted adjusted in such manner and at such time, by action of the board of directors of the Corporation, in its sole reasonable discretion as it may determine to include be equitable in the number of Common Shares or other property or securities a Special Warrantholder is entitled to receivecircumstances, as a result of provided that no such adjustment and all shall be made unless prior adjustments pursuant approval of any stock exchange on which the Shares are listed for trading has been obtained. Failure of the board of directors of the Corporation to this Section, upon make such an adjustment shall be conclusive evidence that the full exercise or deemed exercise board of a Special Warrant;directors of the Corporation have determined that it is equitable to make no adjustment in the circumstances.
Appears in 1 contract
Sources: Subscription and Debenture Purchase Agreement (Virexx Medical Corp)
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, The Exercise Price in effect and the subscription rights attaching to number and type of securities purchasable under the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time from the date hereof and prior to the Expiry TimeDate, the Company shall:
Corporation shall (i) subdivide its or re-divide the outstanding Common Shares into a greater number of 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 or exchangeable for Common Shares) to the number holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than the issue of Common Shares obtainable upon to holders of Common Shares who have elected to receive dividends in the exercise or deemed exercise form of each Special Warrant shall be adjustedCommon Shares in lieu of Dividends Paid in the Ordinary Course), at no cost to such holder, immediately after the Exercise Price in effect on the effective date of any such subdivision event shall be adjusted immediately after such event or consolidation on the record date for such issue of Common Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the number Exercise Price in effect immediately prior to such event by a fraction, of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) which the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
event and of which the denominator shall be the total number of Common Shares outstanding immediately after such event (including the total number of Common Shares into or for which the securities convertible into or exchangeable for Common Shares so issued are convertible into or exchangeable for). Any Common Shares owned by or held for the account of the Corporation or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. The number of Common Shares which the Holder of Warrants is entitled to purchase for each Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction. Any such adjustments shall be made successively whenever any event referred to in this subsection (a) shall occur and any such issue of Common Shares (or securities convertible into or exchangeable for 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 immediately after such event under subsections (a) and all adjustments in (c) of this Subsection are cumulative);Section 4.6.
(b) if If and whenever at any time from the date hereof and prior to the Expiry TimeDate, the Company Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all of the holders of the 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 for Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise 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 plus 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 such Current Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date 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 or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are not exercised prior to the expiration thereof, the Exercise Price shall then be re-adjusted to the Exercise Price which would then be in effect based upon the number and aggregate price of Common Shares (or securities convertible into or exchangeable for 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 prior to the Expiry Date, the Corporation shall fix a record date for the making of a distribution to all or substantially all of the holders of its outstanding Common Shares of (i) shares of any class other than Common Shares, other than shares distributed to holders of Common Shares who have elected to receive dividends in the form of such shares in lieu of Dividends Paid in the Ordinary Course and other than the issue of Common Shares (or distribute securities convertible into or exchangeable for Common Shares) to the holders of all or substantially all of the Company's outstanding Common Shares by way of a stock dividend, or any securities of the Company including (ii) rights, options or warrants to acquire (excluding those exercisable for 45 days or less after the record date therefor), or (iii) evidences of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtednessother corporations, then, in each such case, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder Exercise Price shall be entitled to receiveadjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, at no cost to such holder, and of which the numerator shall accept for be the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the total number of Common Shares to which he was theretofore entitled upon outstanding on such exercise or deemed exercise and if determined appropriate record date multiplied by the Current Market Price per Common Share on such record date, less the fair market value (as determined by the board of directors, appropriate adjustments which determination shall be conclusive) of such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Current Market Price per Common Share. Any Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. Such adjustment shall be made as successively whenever such a result of any record date is fixed. To the extent that such issue or distribution is not so made, the Exercise Price shall be re-adjusted to the rights and interests Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would then be in effect based upon such shares or rights, options or warrants or evidences of Special Warrantholders thereafter so that indebtedness or assets actually distributed, as the provisions case may be. In clause (iv) of this Article 4 subsection 4.6(c), the term "Dividends Paid in the Ordinary Course" shall thereafter apply correspondingly to include the value of any securities or other property thereafter deliverable upon or assets distributed in lieu of cash Dividends Paid in the exercise or deemed exercise Ordinary Course at the option of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;shareholders.
(cd) if If and whenever at any time from the date hereof and prior to the Expiry TimeDate, there is a reclassification of the Common Shares at any time outstanding or a change of the Common Shares into other shares or a capital reorganization of the Company other than as described Corporation not covered in Subsections 4.1(a) or subsection (ba) or a consolidation, amalgamation or merger of the Company Corporation with or into any other body corporatecorporation, trust, partnership or other entityan exchange of the securities of the Corporation pursuant to a plan of arrangement, or a sale or conveyance of the property and assets of the Company Corporation as an entirety or substantially as an entiretyentirety to any other person, any Special Warrantholder who a Holder of a Warrant which has not been exercised his right of subscription prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger, exchange or sale or conveyanceshall thereafter, upon the exercise or deemed exercise of such right thereafterWarrants, shall be entitled to receive and shall accept in lieu of the kind and number of Common Shares, as then constituted, to which the Holder was previously entitled upon exercise of the Warrants, but for the same aggregate consideration payable therefor, the number of shares or other securities or property of the Corporation or of the corporation resulting from such reclassification, capital reorganization, consolidation, amalgamation, merger, or exchange or of the person to which such sale may be made, as the case may be, that such Special Warrantholder Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, exchange or sale or conveyance, if, if on the record date or the effective date thereof, as the case may be, the Special Warrantholder Holder had been the registered holder of the number of Common Shares receivable to which the Holder was previously entitled upon the exercise or deemed due exercise of Special Warrants then heldthe Warrants; and in any case, subject to if necessary, appropriate adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement which shall provide, to the extent possible, for made in the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Special Warrantholders Holders of the Warrants 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 in relation to any shares or other securities or property to which a Special Warrantholder is the Holder of Warrants may be entitled on upon the exercise or deemed exercise of his Special such Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;.
(de) in In any case in which this Section 4.1 4.6 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company may deferCorporation may, until the occurrence of such event, defer issuing to the holder Holder of any Special Warrant exercising or deemed to be exercising his subscription rights exercised after such record date and before the additional Common Shares or occurrence of such event the kind and amount of shares, other securities or property issuable to which he would be entitled upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, provided that the Company Corporation shall deliver to such holder Holder an appropriate instrument evidencing such holderHolder's right to receive such additional Common Shares or the kind and amount of shares, other securities or property, as the case may be, property to which he would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, constituted from time to time on and after the date of exercise or deemed exercise or such later date as such holder would Holder would, but for the provisions of this Subsection 4.1(dsubsection 4.6(e), have received, or become the holder of record of entitled to receive, on such additional Common Shares exercise.
(f) The adjustments provided for in this Section 4.6 are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other securities events resulting in any adjustment under the provisions of this Section 4.6; provided that notwithstanding any other provision of this Section 4.6, (i) no adjustment of the Exercise Price or propertynumber of Common Shares, as then constituted, purchasable shall be required unless such adjustment would require an increase or decrease of at least 1% in the case Exercise Price then in effect or the number of Common Shares, as then constituted, purchasable, and (ii) any adjustments which by reason of this subsection 4.6(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(g) In the event of any question arising with respect to the adjustments provided in this Section 4.6, such question shall be conclusively determined by a firm of chartered accountants appointed by the Corporation and acceptable to the Warrant Agent (who may bebe 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 Warrant Agent and the Warrant Holders.
(h) As a condition precedent to the taking of any action which would require an adjustment in any of the subscription rights pursuant to the exercise or deemed exercise any of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and including the number of Common Shares indicated which are to be received upon the exercise thereof, the Corporation shall take any action which may, in any the opinion of counsel be necessary in order that the Corporation may validly and legally issue as fully paid and non-assessable all the Common Shares which the holders of such Warrants are entitled to receive on the full exercise thereof in accordance with the provisions hereof.
(i) No adjustment shall be made pursuant to a Special this Section 4.6 if the Warrant Holders are entitled to participate in any event described in this Section 4.6 on the same terms, mutatis mutandis, as if the Warrant Holders had exercised their Warrants prior to, or on the effective date or record date of, such event.
(j) In case the Corporation shall be interpreted to include take any action affecting the Common Shares other than action described in this Section 4.6, which in the opinion of the directors of the Corporation would materially affect the rights of Warrant Holders, the Exercise Price and/or the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, which may be acquired upon the full exercise or deemed exercise of a Special Warrant;Warrant shall be adjusted by action of the directors in such manner and at such time, in their sole discretion, as they may determine to be equitable in the circumstances, provided that no such adjustment will be made unless prior approval of all stock exchanges on which the Common Shares are listed for trading has been obtained. 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.
Appears in 1 contract
Sources: Warrant Indenture (Emc Metals Corp.)
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the The subscription rights attaching to the Special Warrants with respect to (whether or not issued and outstanding) and the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants Exercise Consideration shall be subject to adjustment from time to time as followsfollows and, for greater certainty, if an event occurs requiring an adjustment pursuant to this Article 4, such adjustment shall apply to all Warrants issued and outstanding (but not yet exercised) and the Company shall give notice of such adjustment to each holder of Warrants, and otherwise treat each holder of Warrants, as if it were a Warrantholder for the purposes of this Article 4:
(a) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall:
(i) subdivide its outstanding Common Shares into a greater number of shares; or;
(ii) consolidate its outstanding Common Shares into a smaller number of shares; or
(iii) issue Common Shares or securities convertible into or exchangeable for Common Shares to all or substantially all of the holders of Common Shares by way of stock dividend or otherwise, the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation or the record date of such stock dividend, by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of securities convertible securitiesinto or exchangeable for Common Shares, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a, and such adjustment shall be made successively whenever any event referred to in this SubsSection 4.01(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall fix a record date for the issue of rights, options or distribute warrants to the holders of all or substantially all of the Company's outstanding holders of Common Shares or any securities entitling the holders thereof, within a period expiring not more than 45 days after the date of the Company including rightsissue thereof, options to subscribe for or warrants to acquire shares of the Company purchase Common Shares (or securities convertible into or exchangeable for shares Common Shares) at a price per Common Share or underlying Common Share less than 95% of the Company or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as ifCurrent Market Price, on the effective earlier of such record date thereofand the date on which the Company announces its intention to make such issuance, he had been the registered holder of then, in each such case, the number of Common Shares obtainable on the exercise of each Warrant ("SHARE RATE") will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Share Rate in effect on such record date by a fraction, of which the denominator shall be the total number of Common Shares outstanding on such record date plus a number of Common Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Common Shares (or the total number of additional Common Shares underlying securities convertible into or exchangeable for Common Shares) so offered for subscription or purchase by such Current Market Price, and of which he was theretofore entitled upon the numerator shall be the total number of Common Shares outstanding on such exercise record date plus the total number of additional Common Shares so offered for subscription or deemed exercise and purchase (or the total number of Common Shares underlying the convertible or exchangeable securities so offered); if determined appropriate by the directorsterms of such rights, appropriate adjustments options or warrants, there is more than one purchase, conversion or exchange price per Common Share, the aggregate price of the total number of additional Common Shares offered for subscription or purchase, or the additional conversion or exchange price of the convertible or exchangeable securities so offered, shall be calculated for the purposes of the adjustment on the basis of the lowest purchase, conversion or exchange price per Common Share, as the case may be. Such adjustment will be made successively whenever such a record date is fixed, provided that if two or more such record dates or record dates referred to in SubSection 4.01(c) are fixed within a period of 20 trading days on the principal stock exchange on which the Common Shares are listed, such adjustment will be made successively as a result if each of such record dates occurred on the earliest of such record dates. To the extent that any such issue rights, options or distribution warrants are not so issued or any such rights, options or warrants are not exercised prior to the rights expiration thereof, the Exchange Consideration and interests the Share Rate will then be readjusted to the Share Rate which would then be in effect if such record date had not been fixed or to the Share Rate which would then be in effect based upon the number of Special Warrantholders thereafter so that rights, options or warrants actually distributed or based upon the provisions number of this Article 4 shall thereafter apply correspondingly to any Common Shares (or securities convertible into or other property thereafter deliverable exchangeable for Common Shares) actually issued upon the exercise of such rights, options or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by warrants, as the directors and shall for all purposes be conclusively deemed to be appropriate adjustmentscase may be;
(c) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall fix a record date for the making of a distribution to all or substantially all of the holders of Common Shares of:
(i) securities other than Common Shares or securities convertible into or exchangeable for Common Shares;
(ii) rights, options or warrants (other than rights, options or warrants contemplated by SubSection 4.01(b));
(iii) evidences of indebtedness; or
(iv) cash or other property or assets (other than cash dividends paid in the ordinary course); then, in each such case, the Share Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Share Rate in effect on such record date by a fraction, of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by the Current Market Price on the earlier of such record date and the date on which the Company announces its intention to make such distribution, less the aggregate fair market value (as determined by the directors at the time such distribution is authorized) of such securities or rights, options or warrants or evidences of indebtedness or cash or other property or assets so distributed, and of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by such Current Market Price. Such adjustment will be made successively whenever such a record date is fixed, provided that if two or more such record dates or record dates referred to in SubSection 4.01(b) are fixed within a period of 20 trading days on the principal stock exchange on which the Common Shares are listed, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates. To the extent that such distribution is not so made or to the extent that any such rights, options or warrants so distributed are not exercised prior to the expiration thereof, the Share Rate will then be readjusted to the Share Rate which would then be in effect if such record date had not been fixed or to the Share Rate which would then be in effect based upon such securities or rights, options or warrants or evidences of indebtedness or cash or other property or assets actually distributed or based upon the number or amount of securities or the property or assets actually issued or distributed upon the exercise of such rights, options or warrants, as the case may be;
(d) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company other than as described in Subsections 4.1(aSubSection 4.01(a), (b) or (bc) or a consolidation, amalgamation or merger of the Company or other form of business combination of the Company with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Common Shares receivable upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.14.01; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, successor or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other the securities or and property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(cSubSection 4.01(d) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 4.01 and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(de) in any case in which this Section 4.1 shall require that 4.01 requires an adjustment shall to 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 holder of any Special Warrant Warrantholder exercising or deemed to be exercising his subscription rights after such record date the additional Common Shares or other securities or property issuable upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares or other securities or property, 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 or other securities or property, as the case may be, declared in favour of holders of record of such Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(dSubSection 4.01(e), have become the holder of record of such additional Common Shares or Shares, other securities or property, as the case may be, pursuant to upon the exercise or deemed exercise of the Special Warrants held by such holder;
(ef) after any adjustment pursuant to this Section 4.14.01, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes or property which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.14.01, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in to be issuable upon any exercise made pursuant to of a Special Warrant shall be interpreted to include the number of Common Shares or other securities or property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this SectionSection 4.01, upon the full exercise or deemed exercise of a Special the Warrant;
Appears in 1 contract
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants shall be subject to adjustment from time to time as follows:
(a) if and whenever 3.1. If at any time from the date hereof and prior to the Expiry TimeTime there shall be a Company Reorganization, and the Holder thereafter exercises the right to purchase Common Shares hereunder, the Company shall:
(i) subdivide its outstanding Common Shares into a greater number of shares; or
(ii) consolidate its outstanding Common Shares into a smaller number of shares; the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares or any securities of the Company including rights, options or warrants to acquire shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder Holder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate considerationaccept, subject to, if required, TSX Venture Exchange approval, in addition to lieu of the number of Common Shares to which he the Holder was theretofore entitled upon such exercise or deemed exercise, the kind and amount of shares and other securities or property which such holder the Holder would have been entitled to receive as a result of such issue or distribution as Company Reorganization if, on the effective date thereof, he the Holder had been the registered holder of the number of Common Shares to which he the Holder was theretofore entitled upon such exercise exercise. The subdivision or deemed exercise and if determined appropriate by consolidation of the directors, appropriate adjustments Common Shares at any time outstanding into a greater or lesser number of Common Shares shall be made as deemed not to be a result of any such issue or distribution to Company Reorganization for the rights and interests of Special Warrantholders thereafter so that the provisions purposes of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;section 3.1.
(c) if 3.2. If and whenever at any time from the date hereof and prior to the Expiry Time, there is the Company shall (i) subdivide the outstanding Common Shares into a reclassification greater number of shares, (ii) consolidate the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares (or other 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 stock dividend or a capital reorganization of otherwise on the Company other than as described Common Shares, then, subject to, if required, TSX Venture Exchange approval, (A) the Exercise Price in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to effect on the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale subdivision or conveyance, upon the exercise consolidation or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date for such issue of Common Shares by way of a stock dividend or the effective date thereofotherwise, as the case may be, shall be adjusted by multiplying the Special Warrantholder had been Exercise Price then in effect by a fraction, the registered holder numerator of which is the number of Common Shares receivable outstanding immediately prior to such event and the denominator of which is the number of Common Shares outstanding immediately following such event, and for the purposes of the adjustment contemplated hereby, the expression “number of Common Shares outstanding” at any time shall include all Common Shares issuable upon exercise of all outstanding rights to acquire Common Shares the exercise or deemed exercise of Special Warrants then held, which is not subject to any condition or limitation which has not been satisfied at that time; and (B) the number of Common Shares purchasable pursuant to the Warrants evidenced hereby shall be adjusted contemporaneously with the adjustment thereafter of the Exercise Price by multiplying the number of Common Shares therefore purchasable on the exercise thereof by a fraction the numerator of which shall be the Exercise Price in accordance with provisions effect immediately prior to such adjustment and the samedenominator of which shall be the Exercise Price resulting from such adjustment. Such adjustments shall be made successively whenever any event referred to in this section 3.2 shall occur. Any such issue of Common Shares by way of a stock dividend will 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 this section 3.2.
3.3. If at any time prior to the Time of Expiry the Company will take any action affecting the Common Shares, as nearly as may be possible, as those contained other than an action or event described above in this Section 4.1; provided that no such action 3, which would have a material adverse effect upon the rights of the Holder under this Warrant Certificate, the Exercise Price and/or the number of Common Shares purchasable under this Warrant Certificate shall be carried into effect unless all necessary steps adjusted in such manner as the Company’s board of directors shall have been taken so that determine to be equitable in the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and propertycircumstances.
3.4. The Companyadjustments provided for herein are cumulative and shall apply to successive Company Reorganizations, its successorsubdivisions, or the purchasing body corporateconsolidations, partnershipdistributions, trust issues or other entityevents resulting in any adjustment.
3.5. Any question arising with respect to the adjustments provided herein shall be conclusively determined by an independent firm of chartered accountants of national recognition, as in Vancouver, acceptable to the case may beCompany and the Holder, shalleach acting reasonably, as and who will have access to all appropriate records, and such determination, absent manifest error, will be binding upon the Company and the Holder.
3.6. As a condition precedent to the taking of any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into action which would require an agreement which shall provide, to the extent possible, for the application of the provisions set forth adjustment in this Indenture with respect to the subscription rights and interests thereafter of the Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to Warrants, including the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust or other entity Exercise Price and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(d) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company may defer, until the occurrence number of such event, issuing to the holder classes of any Special Warrant exercising or deemed to be exercising his subscription rights after such record date the additional Common Shares shares or other securities or property issuable which are to be received by upon such the exercise or deemed exercise by reason of thereof, the adjustment required by such event; provided, however, Company shall take all corporate action which is necessary in order that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional has reserved and there will remain unissued out of its authorized capital a sufficient number of Common Shares for issuance upon the exercise of the Warrants evidenced hereby, and that the Company may validly and legally issue as fully paid and non-assessable all the shares of such classes or other securities or propertymay validly and legally distribute the property which the Holder is entitled to receive on the full exercise thereof in accordance with the provisions hereof.
3.7. The Company shall, as the case may be, upon soon as practicable after the occurrence of any event which requires an adjustment or readjustment as provided herein, notify the Holder by specifying the nature of the event requiring the same and the amount of the adjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based on and the adjustment specified therein shall be verified by an opinion of the auditors of the Company and shall, subject to rights of the Parties contained within Section 3.6, be conclusive and binding on all parties in interest. The Company shall forthwith give notice to the Holder specifying the event requiring such adjustment or readjustment and the right to receive any distributions made on such additional Common Shares or other securities or propertyresults thereof, as including the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and resulting Exercise Price and/or the number of Common Shares indicated in any exercise made pursuant to a Special purchasable under this Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise or deemed exercise of a Special Warrant;Certificate.
Appears in 1 contract
Sources: Radio Option Agreement
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants 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 from the date hereof following April 17, 2002 and prior to 5:00 p.m. (Toronto time) on the Maturity Date (the "Expiry Time"), the Company shall:
Corporation shall (i) subdivide its or redivide the outstanding Common Shares into a greater number of shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of shares; the number of Common , or (iii) issue Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common other Participating Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares by way of a stock dividend, the Conversion Price in effect on the effective date of any such event shall be adjusted immediately after such event or on the record date for such issue of Shares or other Participating Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the Conversion Price in effect immediately prior to such event by a fraction, of which the numerator shall be the total number of Shares and other Participating Shares outstanding immediately prior to such event; such adjustment shall be made successively whenever any securities event referred to in this subsection (a) shall occur; any such issue of Shares or other Participating Shares by way of a stock dividend shall be deemed to have been made on the Company including record date for the stock dividend for the purpose of calculating the number of outstanding Shares or other Participating Shares immediately after such event under this subsection (a) and subsection (e) of this Section.
(b) If and whenever at any time following April 17, 2002 and prior to the Expiry Time the Corporation shall fix a record date for the issuance of rights, options or warrants to acquire shares all or substantially all of the Company holders of the outstanding Shares, entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, 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 Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Shares or other Participating 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, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares or other Participating Shares offered for subscription or purchase (or into which the convertible or exchangeable securities so offered are convertible or exchangeable); any Shares owned by or held for the account of the Corporation or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are, not exercised prior to the expiration thereof, the Conversion Price shall then be re-adjusted to the Conversion Price which would then be in effect based upon the number and aggregate price of Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be.
(c) If and whenever at any time following April 17, 2002 and prior to the Expiry Time 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 Shares or Participating Shares, other than shares distributed to holders of Shares pursuant to their exercise of options to receive dividends in the Company form of such shares in lieu of Dividends Paid in the Ordinary Course on the Shares and other than the issue of Shares or property other Participating Shares to the holders of all or substantially all of the outstanding Shares by way of a stock dividend, or (ii) rights, options or warrants (excluding rights exercisable for 45 days or less) or (iii) evidences of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of other corporations, 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 Shares outstanding on such record date multiplied by the Current Market Price per Share on such record date, less the fair market value (as determined by the board of directors of the Corporation, acting reasonably, which determination, absent manifest error, shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets including cash so distributed, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by such Current Market Price per Share; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, 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 or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtednessindebtedness or assets actually distributed, as the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holdercase may be, and in clause (iv) the term "Dividends Paid in the Ordinary Course" shall accept for include the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount value of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon or assets distributed in lieu of cash Dividends Paid in the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;Ordinary Course.
(cd) if If and whenever at any time from the date hereof following April 17, 2002 and prior to the Expiry Time, Time there is a reclassification of the Common Shares at any time outstanding or a change of the Shares into other shares or a capital reorganization of the Company other than as described Corporation not covered in Subsections 4.1(a) or subsection (ba) or a consolidation, amalgamation or merger of the Company Corporation with or into any other body corporate, trust, partnership or other entity, corporation or a sale or conveyance of the property and assets of the Company Corporation as an entirety or substantially as an entiretyentirety to any other person, any Special Warrantholder who the Purchaser, to the extent that the Loan has not exercised his right of subscription been converted, prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyanceshall thereafter, upon conversion of the exercise or deemed exercise of such right thereafterLoan, shall be entitled to receive and shall accept in lieu of the kind and number of Shares, as then constituted, to which the Purchaser was previously entitled upon conversion of the Loan, the number of shares or other securities or property of the Corporation or of the corporation resulting from such reclassification, consolidation, amalgamation or merger or of the person to which such sale may be made, as the case may be, that such Special Warrantholder the Purchaser would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder Purchaser had been the registered holder of the number of Common Shares receivable to which the Purchaser was previously entitled upon due conversion of the exercise or deemed exercise of Special Warrants then heldLoan; and in any case, subject to if necessary, appropriate adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement which shall provide, to the extent possible, for made in the application of the provisions set forth in this Indenture Agreement with respect to the rights and interests thereafter of the Special Warrantholders Purchaser to the end that the provisions set forth in this Indenture Agreement shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect in relation to any shares other or securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as Purchaser may be practicable to entitled upon the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;conversion of the Loan thereafter.
(de) in In any case in which this Section 4.1 Agreement shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company Corporation may defer, until the occurrence of such event, issuing to the holder of any Special Warrant exercising or deemed to be exercising his subscription rights Purchaser if converted after such record date and before the additional Common Shares or occurrence of such event the kind and amount of shares, other securities or property issuable to which it would be entitled upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company Corporation shall deliver to such holder the Purchaser an appropriate instrument evidencing such holderthe Purchaser's right to receive such additional Common Shares or the kind and amount of shares, other securities or property, as the case may be, property to which it would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, constituted from time to time on and after the date of exercise or deemed exercise or such later date as such holder would the Purchaser would, but for the provisions of this Subsection 4.1(dsubsection (e), have received, or become the holder of record of entitled to receive, on such additional Common Shares exercise.
(f) The adjustments provided for in this Agreement are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other securities or propertyevents resulting in any adjustment under the provisions of this Agreement provided that, notwithstanding any other provision of this Section, no adjustment of the Conversion Price, as then constituted, purchasable shall be required unless such adjustment would require an increase or decrease, of at least 1% in the case 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) In the event of any question arising with respect to the adjustments provided in this Agreement, such question shall, absent manifest error, be conclusively determined by a firm of chartered accountants appointed by the Corporation and acceptable to the Purchaser (who may bebe the auditors of the Corporation) with the assistance of legal counsel, who may be legal counsel to the Corporation; such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation and the Purchaser.
(h) As a condition precedent to the taking of any action which would require an adjustment in any of the Conversion Price pursuant to the exercise or deemed exercise terms of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1Agreement, the term "Common Shares" where used Corporation shall take any action which may, in this Indenture shall the opinion of legal counsel, be interpreted to mean securities of any class or classes which, necessary in order that the Corporation may validly and legally issue as a result of such adjustment fully paid and non-assessable all prior adjustments pursuant to this Section 4.1, a Special Warrantholder the Shares which the Purchaser is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon on the full exercise or deemed exercise thereof in accordance with the provisions hereof.
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Agreement, which in the opinion of a Special Warrant;the board of directors of the Corporation would materially affect the rights of Purchaser, the Conversion Price shall be adjusted in such manner and at such time, by action of the board of directors of the Corporation, in its sole reasonable discretion as it may determine to be equitable in the circumstances, provided that no such adjustment shall be made unless prior approval of any stock exchange on which the Shares are listed for trading has been obtained. Failure of the board of directors of the Corporation to make such an adjustment shall be conclusive evidence that the board of directors of the Corporation have determined that it is equitable to make no adjustment in the circumstances.
Appears in 1 contract
Sources: Subscription and Debenture Purchase Agreement (Altarex Corp)
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, The Subscription Price in effect and the subscription rights attaching to number and type of securities purchasable under the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants Warrant at any date shall be subject to adjustment from time to time as follows:
(a) if If and whenever at any time from the date hereof following April 17, 2002 and prior to the Expiry Time, the Company shall:
Corporation shall (i) subdivide its or redivide the outstanding Common Shares into a greater number of shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of shares; the number of Common , or (iii) issue Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common other Participating Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares by way of a stock dividend, the Subscription Price in effect on the effective date of any such event shall be adjusted immediately after such event or on the record date for such issue of Shares or any securities other Participating Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the Subscription Price in effect immediately prior to such event by a fraction, of which the numerator shall be the total number of Shares and other Participating Shares outstanding immediately prior to such event and of which the denominator shall be the total number of Shares and other Participating Shares outstanding immediately after such event; and the number of Shares which the Holder is entitled to purchase under the terms of this Warrant certificate shall be adjusted at the same time by multiplying the number by the inverse of the Company including aforesaid fraction; such adjustments shall be made successively whenever any event referred to in this subsection (a) shall occur; any such issue of Shares or other Participating 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 Shares or other Participating Shares immediately after such event under this subsection (a) and subsection (e) of this Section.
(b) If and whenever at any time following April 17, 2002 and prior to the Expiry Time the Corporation shall fix a record date for the issuance of rights, options or warrants to acquire shares all or substantially all of the Company holders of the outstanding Shares, entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, the Subscription Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Subscription Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Shares or other Participating 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, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares or other Participating Shares offered for subscription or purchase (or into which the convertible or exchangeable securities so offered are convertible or exchangeable); any Shares owned by or held for the account of the Corporation or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; and the number of Shares which the Holder is entitled to purchase under the terms of this Warrant certificate shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are, not exercised prior to the expiration thereof, the Subscription Price and the exchange rate shall then be re-adjusted to the Subscription Price and the exchange rate which would then be in effect based upon the number and aggregate price of Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be.
(c) If and whenever at any time following April 17, 2002 and prior to the Expiry Time 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 Shares or Participating Shares, other than shares distributed to holders of Shares pursuant to their exercise of options to receive dividends in the Company form of such shares in lieu of Dividends Paid in the Ordinary Course on the Shares and other than the issue of Shares or property other Participating Shares to the holders of all or substantially all of the outstanding Shares by way of a stock dividend, or (ii) rights, options or warrants (excluding rights exercisable for 45 days or less) or (iii) evidences of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of other corporations, then, in each such case, the Subscription Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Subscription Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price per Share on such record date, less the fair market value (as determined by the board of directors of the Corporation, acting reasonably, which determination, absent manifest error, shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets including cash so distributed, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by such Current Market Price per Share; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; and the number of Shares which the Holder is entitled to purchase under the terms of this Warrant certificate shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Subscription Price and the exchange rate shall be re-adjusted to the Subscription Price and the exchange rate which would then be in effect if such record date had not been fixed or to the Subscription Price and the exchange rate which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtednessindebtedness or assets actually distributed, as the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holdercase may be, and in clause (iv) the term "Dividends Paid in the Ordinary Course" shall accept for include the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount value of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon or assets distributed in lieu of cash Dividends Paid in the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;Ordinary Course.
(cd) if If and whenever at any time from the date hereof following April 17, 2002 and prior to the Expiry Time, Time there is a reclassification of the Common Shares at any time outstanding or a change of the Shares into other shares or a capital reorganization of the Company other than as described Corporation not covered in Subsections 4.1(a) or subsection (ba) or a consolidation, amalgamation or merger of the Company Corporation with or into any other body corporate, trust, partnership or other entity, corporation or a sale or conveyance of the property and assets of the Company Corporation as an entirety or substantially as an entiretyentirety to any other person, any Special Warrantholder who a Holder holding the Warrant under this Warrant certificate which has not been exercised his right of subscription prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyanceshall thereafter, upon the exercise or deemed exercise of such right thereafterthe Warrant, shall be entitled to receive and shall accept in lieu of the kind and number of Shares, as then constituted, to which the Holder was previously entitled upon exercise of the Warrant, but for the same aggregate consideration payable therefor, the number of shares or other securities or property of the Corporation or of the corporation resulting from such reclassification, consolidation, amalgamation or merger or of the person to which such sale may be made, as the case may be, that such Special Warrantholder Holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder Holder had been the registered holder of the number of Common Shares receivable to which the Holder was previously entitled upon the exercise or deemed due exercise of Special Warrants then heldthe Warrant; and in any case, subject to if necessary, appropriate adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement which shall provide, to the extent possible, for made in the application of the provisions set forth in this Indenture Warrant certificate with respect to the rights and interests thereafter of the Special Warrantholders Holder to the end that the provisions set forth in this Indenture Warrant certificate shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect in relation to any shares other or securities or property to which a Special Warrantholder is the Holder may be entitled on upon the exercise or deemed exercise of his Special Warrants the Warrant thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;.
(de) in In any case in which this Section 4.1 Warrant certificate shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company Corporation may defer, until the occurrence of such event, issuing to the holder Holder of any Special the Warrant exercising or deemed to be exercising his subscription rights if exercised after such record date and before the additional Common Shares or occurrence of such event the kind and amount of shares, other securities or property issuable to which it would be entitled upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company Corporation shall deliver to such holder the Holder an appropriate instrument evidencing such holderthe Holder's right to receive such additional Common Shares or the kind and amount of shares, other securities or property, as the case may be, property to which it would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, constituted from time to time on and after the date of exercise or deemed exercise or such later date as such holder would the Holder would, but for the provisions of this Subsection 4.1(dsubsection (e), have received, or become the holder of record of entitled to receive, on such additional Common Shares exercise.
(f) The adjustments provided for in this Warrant certificate are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other securities events resulting in any adjustment under the provisions of this Warrant certificate provided that, notwithstanding any other provision of this Section, no adjustment of the Subscription Price or propertynumber of Shares, as then constituted, purchasable shall be required unless such adjustment would require an increase or decrease, of at least 1% in the case Subscription Price or the number of Shares, as then constituted, purchasable 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) In the event of any question arising with respect to the adjustments provided in this Warrant certificate, such question shall, absent manifest error, be conclusively determined by a firm of chartered accountants appointed by the Corporation and acceptable to the Holder (who may bebe the auditors of the Corporation) with the assistance of legal counsel, who may be legal counsel to the Corporation; such accountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation and the Holder.
(h) As a condition precedent to the taking of any action which would require an adjustment in any of the subscription rights pursuant to the exercise or deemed exercise terms of the Special Warrants held by such holder;
(e) after any adjustment pursuant Warrant, including the number of Shares which are to this Section 4.1be received upon the exercise thereof, the term "Common Shares" where used Corporation shall take any action which may, in this Indenture shall the opinion of legal counsel, be interpreted to mean securities of any class or classes which, necessary in order that the Corporation may validly and legally issue as a result of such adjustment fully paid and non-assessable all prior adjustments pursuant to this Section 4.1, a Special Warrantholder the Shares which the Holder is entitled to receive upon on the full exercise or deemed exercise thereof in accordance with the provisions hereof.
(i) In case the Corporation shall take any action affecting the Shares other than action described in this Warrant certificate, which in the opinion of such holder's Special Warrantsthe board of directors of the Corporation would materially affect the rights of Holder, and the Subscription Price and/or the number of Common Shares indicated in any which may be acquired upon exercise made pursuant to a Special of the Warrant shall be interpreted adjusted in such manner and at such time, by action of the board of directors of the Corporation, in its sole reasonable discretion as it may determine to include be equitable in the number of Common Shares or other property or securities a Special Warrantholder is entitled to receivecircumstances, as a result of provided that no such adjustment and all shall be made unless prior adjustments pursuant approval of any stock exchange on which the Shares are listed for trading has been obtained. Failure of the board of directors of the Corporation to this Section, upon make such an adjustment shall be conclusive evidence that the full exercise or deemed exercise board of a Special Warrant;directors of the Corporation have determined that it is equitable to make no adjustment in the circumstances.
Appears in 1 contract
Sources: Subscription and Debenture Purchase Agreement (Altarex Corp)
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the The subscription rights attaching to under the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants Warrant shall be subject to adjustment from time to time as follows:
(a) if and whenever in the event the Corporation shall, at any time from while the date hereof and prior to the Expiry Time, the Company shallWarrant is outstanding:
(i) subdivide its outstanding Common Shares into a greater number of shares; or;
(ii) combine or consolidate its outstanding Common Shares into a smaller number of shares; or
(iii) issue Common Shares, or securities exchangeable for or convertible into Common Shares to the holders of any of its outstanding shares by way of a stock dividend; the Exercise Price shall be adjusted effective immediately after the record date at which the holders of Common Shares are determined for the purposes of any of the foregoing events to a price determined by multiplying the Exercise Price in effect on such record date by a fraction, the numerator of which shall be the number of Common Shares obtainable upon outstanding on such record date, and the exercise or deemed exercise of each Special Warrant denominator shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable outstanding after the completion of the applicable event, 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 the securities been exchanged for or converted into Common Shares on such record date. Such adjustments shall be made successively whenever any event referred to in this Section 5.01 shall occur and any such issuance of securities by way of a stock dividend shall be deemed to have been made on the exercise record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under this Section 5.01.
(b) In the event the Corporation shall fix a record date for the issuance of rights, options or deemed exercise thereof warrants, other than options issued to employees pursuant to a stock option or stock purchase plan approved by the fraction directors of which:
the Corporation, to all or substantially all the holders of its outstanding Common Shares entitling them for a period expiring not more than 60 days after such record date, to subscribe for or purchase Common Shares (Aor securities exchangeable for or convertible into Common Shares) at a price per share (or having an exchange or conversion price per share) less than 95% of the Current Market Price on such record date, the Exercise Price shall be adjusted immediately after the date upon which such rights, options or warrants expire so that it shall equal a rate determined by multiplying the Exercise Price in effect on such expiry date by a fraction, of which the numerator shall be the total number of Common Shares outstanding immediately after on such dateexpiry date (exclusive of those Common Shares issued upon the exercise of such rights, or, in options or warrants) plus a number of Common Shares equal to the case number arrived at by dividing the aggregate price of the issuance of convertible securities, the total number of additional Common Shares outstanding immediately after such date plus subscribed for or purchased upon the total number of Common Shares issuable upon conversion or exchange exercise of such rights, options or warrants (or the aggregate exchange or conversion price of the convertible securitiessecurities so subscribed for or purchased) by the Current Market Price of a Common Share, and
(B) and of which the denominator shall be the total number of Common Shares outstanding immediately prior on such expiry date (exclusive of those Common Shares issued upon the exercise of such rights, options or warrants) plus the total number of Common shares subscribed for or purchased upon the exercise of such rights, options or warrants (or into which the exchangeable or convertible securities so subscribed for or purchased are exchangeable or convertible). Any Common Shares owned by or held for the account of the Corporation, including those owned by any subsidiary of the Corporation, shall be deemed not to be outstanding for the purpose of any such date,computation. Such adjustment shall be made successively whenever such an expiry date occurs.
(ac) In the event the Corporation shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from fix a record date for the date hereof and prior making of a distribution to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's holders of its outstanding Common Shares of:
(i) shares of any class other than Common shares or any securities exchangeable for or convertible into Common Shares issued by way of a stock dividend;
(ii) rights, options or warrants, excluding those referred to in clause 5.01(b);
(iii) evidences of its indebtedness; or
(iv) assets of the Company including Corporation, excluding cash dividends other than cash dividends to the extent that the aggregate amount of cash dividends paid by the Corporation on its Common Shares in any fiscal year of the Corporation exceeds 100% of the aggregate net income of the Corporation for the immediately preceding five fiscal years less cash dividends paid on any of its shares during such fiscal years; then in each such case the Exercise Price shall be adjusted immediately after such record date, or in the case of such record date being fixed for the issuance of such rights, options or warrants, immediately after the date upon which such rights, options or warrants to acquire shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtednessexpire, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that it shall equal the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon rate determined by multiplying the exercise or deemed exercise of any Special Warrant and any Exercise Price in effect on such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;
(c) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company other than as described in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company with or into any other body corporate, trust, partnership or other entityrecord date, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereofexpiry date, as the case may be, by a fraction, of which the Special Warrantholder had been numerator shall be the registered holder of the total number of Common Shares receivable outstanding on such record date or expiry date (exclusive of those Common Shares issued upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(d) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company may defer, until the occurrence of such eventrights, issuing to options or warrants), multiplied by the holder of any Special Warrant exercising or deemed to be exercising his subscription rights after Current Market Price per Common share on such record date or expiry date, less the additional Common Shares aggregate fair market value (as determined by the board of directors, whose determination shall be conclusive) of such shares, evidences of indebtedness or other securities assets distributed or property issuable upon such exercise or deemed exercise the fair market value (as determined by reason the board of directors, whose determination shall be conclusive) of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares or other securities or property, 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 or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive issued upon the exercise or deemed exercise of such holder's Special Warrantsrights, options or warrants, and of which the denominator shall be the total number of Common Shares indicated in any outstanding on such record date or expiry date (inclusive of those Common Shares issued upon the exercise made pursuant to of such rights, options or warrants) multiplied by the Current Market Price per Common Share on such record date or expiry date. Any Common Shares owned by or held for the account of the Corporation, including those owned by a Special Warrant subsidiary of the Corporation, shall be interpreted deemed not to include be outstanding for the number purpose of Common Shares any such computation. Such adjustment shall be made successively whenever such a record date is fixed or other property such expiry date occurs. To the extent that such distribution of shares, evidences of indebtedness or securities a Special Warrantholder assets is entitled not so made, the Exercise Price shall be readjusted to receivethe Exercise Price which would then be in effect based upon such shares, as a result evidences of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise indebtedness or deemed exercise of a Special Warrant;assets actually distributed.
Appears in 1 contract
Sources: Stock Option Agreement (Dura Products International Inc)
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants 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 from the date hereof following April 17, 2002 and prior to 5:00 p.m. (Toronto time) on the Maturity Date (the “Expiry Time”), the Company shall:
Corporation shall (i) subdivide its or redivide the outstanding Common Shares into a greater number of shares; or
, (ii) reduce, combine or consolidate its the outstanding Common Shares into a smaller number of shares; the number of Common , or (iii) issue Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common other Participating Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares by way of a stock dividend, the Conversion Price in effect on the effective date of any such event shall be adjusted immediately after such event or on the record date for such issue of Shares or other Participating Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the Conversion Price in effect immediately prior to such event by a fraction, of which the numerator shall be the total number of Shares and other Participating Shares outstanding immediately prior to such event; such adjustment shall be made successively whenever any securities event referred to in this subsection (a) shall occur; any such issue of Shares or other Participating Shares by way of a stock dividend shall be deemed to have been made on the Company including record date for the stock dividend for the purpose of calculating the number of outstanding Shares or other Participating Shares immediately after such event under this subsection (a) and subsection (e) of this Section.
(b) If and whenever at any time following April 17, 2002 and prior to the Expiry Time the Corporation shall fix a record date for the issuance of rights, options or warrants to acquire shares all or substantially all of the Company holders of the outstanding Shares, entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, 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 Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Shares or other Participating 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, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares or other Participating Shares offered for subscription or purchase (or into which the convertible or exchangeable securities so offered are convertible or exchangeable); any Shares owned by or held for the account of the Corporation or any subsidiary of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are, not exercised prior to the expiration thereof, the Conversion Price shall then be re-adjusted to the Conversion Price which would then be in effect based upon the number and aggregate price of Shares or other Participating Shares (or securities convertible into or exchangeable for Shares or other Participating Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be.
(c) If and whenever at any time following April 17, 2002 and prior to the Expiry Time 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 Shares or Participating Shares, other than shares distributed to holders of Shares pursuant to their exercise of options to receive dividends in the Company form of such shares in lieu of Dividends Paid in the Ordinary Course on the Shares and other than the issue of Shares or property other Participating Shares to the holders of all or substantially all of the outstanding Shares by way of a stock dividend, or (ii) rights, options or warrants (excluding rights exercisable for 45 days or less) or (iii) evidences of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of other corporations, 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 Shares outstanding on such record date multiplied by the Current Market Price per Share on such record date, less the fair market value (as determined by the board of directors of the Corporation, acting reasonably, which determination, absent manifest error, shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets including cash so distributed, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by such Current Market Price per Share; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, 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 or to the Conversion Price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtednessindebtedness or assets actually distributed, as the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holdercase may be, and in clause (iv) the term “Dividends Paid in the Ordinary Course” shall accept for include the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount value of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon or assets distributed in lieu of cash Dividends Paid in the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;Ordinary Course.
(cd) if If and whenever at any time from the date hereof following April 17, 2002 and prior to the Expiry Time, Time there is a reclassification of the Common Shares at any time outstanding or a change of the Shares into other shares or a capital reorganization of the Company other than as described Corporation not covered in Subsections 4.1(a) or subsection (ba) or a consolidation, amalgamation or merger of the Company Corporation with or into any other body corporate, trust, partnership or other entity, corporation or a sale or conveyance of the property and assets of the Company Corporation as an entirety or substantially as an entiretyentirety to any other person, any Special Warrantholder who the Purchaser, to the extent that the Loan has not exercised his right of subscription been converted, prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyanceshall thereafter, upon conversion of the exercise or deemed exercise of such right thereafterLoan, shall be entitled to receive and shall accept in lieu of the kind and number of Shares, as then constituted, to which the Purchaser was previously entitled upon conversion of the Loan, the number of shares or other securities or property of the Corporation or of the corporation resulting from such reclassification, consolidation, amalgamation or merger or of the person to which such sale may be made, as the case may be, that such Special Warrantholder the Purchaser would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, merger or sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder Purchaser had been the registered holder of the number of Common Shares receivable to which the Purchaser was previously entitled upon due conversion of the exercise or deemed exercise of Special Warrants then heldLoan; and in any case, subject to if necessary, appropriate adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement which shall provide, to the extent possible, for made in the application of the provisions set forth in this Indenture Agreement with respect to the rights and interests thereafter of the Special Warrantholders Purchaser to the end that the provisions set forth in this Indenture Agreement shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect in relation to any shares other or securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as Purchaser may be practicable to entitled upon the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;conversion of the Loan thereafter.
(de) in In any case in which this Section 4.1 Agreement shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Company Corporation may defer, until the occurrence of such event, issuing to the holder of any Special Warrant exercising or deemed to be exercising his subscription rights Purchaser if converted after such record date and before the additional Common Shares or occurrence of such event the kind and amount of shares, other securities or property issuable to which it would be entitled upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company Corporation shall deliver to such holder the Purchaser an appropriate instrument evidencing such holder's the Purchaser’s right to receive such additional Common Shares or the kind and amount of shares, other securities or property, as the case may be, property to which it would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, constituted from time to time on and after the date of exercise or deemed exercise or such later date as such holder would the Purchaser would, but for the provisions of this Subsection 4.1(dsubsection (e), have received, or become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result on such exercise.
(f) The adjustments provided for in this Agreement are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of such adjustment and all prior adjustments pursuant to this Agreement provided that, notwithstanding any other provision of this Section, upon no adjustment of the full exercise Conversion Price, as then constituted, purchasable shall be required unless such adjustment would require an increase or deemed exercise decrease, of a Special Warrant;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.
Appears in 1 contract
Sources: Subscription and Debenture Purchase Agreement (Virexx Medical Corp)
ADJUSTMENT OF SUBSCRIPTION RIGHTS. Subject to Section 4.1A, the The subscription rights attaching to the Special Warrants with respect to the Common Shares issuable upon the exercise or deemed exercise of the Special Warrants shall be subject to adjustment from time to time as follows:
(a) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall:
(i) subdivide its outstanding Common Shares into a greater number of shares; or
(ii) consolidate its outstanding Common Shares into a smaller number of shares; the number of Common Shares obtainable upon the exercise or deemed exercise of each Special Warrant shall be adjusted, at no cost to such holder, immediately after the effective date of such subdivision or consolidation by multiplying the number of Common Shares theretofore obtainable on the exercise or deemed exercise thereof by the fraction of which:
(A) the numerator shall be the total number of Common Shares outstanding immediately after such date, or, in the case of the issuance of convertible securities, the total number of Common Shares outstanding immediately after such date plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities, and
(B) the denominator shall be the total number of Common Shares outstanding immediately prior to such date,
(a) shall occur (and all adjustments in this Subsection are cumulative);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time, the Company shall issue or distribute to the holders of all or substantially all of the Company's outstanding Common Shares or any securities of the Company including rights, options or warrants to acquire shares of the Company or securities convertible into or exchangeable for shares of the Company or property or assets including cash or evidences of indebtedness, the holder of any Special Warrant who thereafter shall exercise or be deemed to have exercised his right to subscribe for Common Shares thereunder shall be entitled to receive, at no cost to such holder, and shall accept for the same aggregate consideration, in addition to the Common Shares to which he was theretofore entitled upon such exercise or deemed exercise, the kind and amount of securities or property which such holder would have been entitled to receive as a result of such issue or distribution as if, on the effective date thereof, he had been the registered holder of the number of Common Shares to which he was theretofore entitled upon such exercise or deemed exercise and if determined appropriate by the directors, appropriate adjustments shall be made as a result of any such issue or distribution to the rights and interests of Special Warrantholders thereafter so that the provisions of this Article 4 shall thereafter apply correspondingly to any securities or other property thereafter deliverable upon the exercise or deemed exercise of any Special Warrant and any such adjustments shall be made by and set forth in an agreement supplemental hereto approved by the directors and shall for all purposes be conclusively deemed to be appropriate adjustments;
(c) if and whenever at any time from the date hereof and prior to the Expiry Time, there is a reclassification of the Common Shares or a capital reorganization of the Company other than as described in Subsections 4.1(a) or (b) or a consolidation, amalgamation or merger of the Company with or into any other body corporate, trust, partnership or other entity, or a sale or conveyance of the property and assets of the Company as an entirety or substantially as an entirety, any Special Warrantholder who has not exercised his right of subscription prior to the effective date of such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, upon the exercise or deemed exercise of such right thereafter, shall be entitled to receive and shall accept the kind and number of securities or property that such Special Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Common Shares receivable upon the exercise or deemed exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 4.1; provided that no such action shall be carried into effect unless all necessary steps shall have been taken so that the holders of the Special Warrants shall thereafter be entitled to receive such kind and number of securities and property. The Company, its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, shall, as a condition precedent to any such reclassification, reorganization, consolidation, amalgamation, merger, sale or conveyance, take all necessary steps hereunder to enter into an agreement 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 Special Warrantholders 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 other securities or property to which a Special Warrantholder is entitled on the exercise or deemed exercise of his Special Warrants thereafter. Any agreement entered into between the Company and the Trustee pursuant to the provisions of this Subsection 4.1(c) shall be a supplemental agreement entered into pursuant to the provisions of Article 7 hereof. Any agreement entered into between the Company, any successor to the Company or any purchasing body corporate, partnership, trust 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 4.1 and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(d) in any case in which this Section 4.1 shall require that an adjustment 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 holder of any Special Warrant exercising or deemed to be exercising his subscription rights after such record date the additional Common Shares or other securities or property issuable upon such exercise or deemed exercise by reason of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares or other securities or property, 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 or other securities or property, as the case may be, declared in favour of holders of record of Common Shares or other securities or property, as the case may be, on and after the date of exercise or deemed exercise or such later date as such holder would but for the provisions of this Subsection 4.1(d), have become the holder of record of such additional Common Shares or other securities or property, as the case may be, pursuant to the exercise or deemed exercise of the Special Warrants held by such holder;
(e) after any adjustment pursuant to this Section 4.1, the term "Common Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, a Special Warrantholder is entitled to receive upon the exercise or deemed exercise of such holder's Special Warrants, and the number of Common Shares indicated in any exercise made pursuant to a Special Warrant shall be interpreted to include the number of Common Shares or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section, upon the full exercise or deemed exercise of a Special Warrant;this
Appears in 1 contract