Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3. (b) In the event the Corporation shall at any time after the Effective Time and prior to the Expiration Date: (i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend; (ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares; (iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or (iv) issue any Common Shares or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted: (i) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and (ii) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share. (c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares. (d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 10 contracts
Sources: Shareholder Agreement, Shareholder Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(ba) In the event the Corporation shall at any time after the Effective Time Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; Shares except as otherwise provided in this Section 2.3, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, ) shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) : x the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 6 contracts
Sources: Shareholder Rights Plan Agreement (Bitfarms LTD), Shareholder Rights Plan Agreement (Bitfarms LTD), Shareholder Rights Plan Agreement (Bitfarms LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Subsection 3.1(a).
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities other than pursuant to any optional stock regular dividend program, Dividend Reinvestment Plan or dividend payable in reinvestment plan of the Corporation providing for the acquisition of Common Shares in lieu of a regular periodic cash dividendShares;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares Shares, Convertible Securities or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, of or in exchange for existing Common SharesShares except as otherwise provided in this Section 2.3; then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after at the time of the record date for such adjustment shall be equal to dividend or of the Exercise Price in effect immediately prior to effective date of such adjustment divided by subdivision, consolidation, other change or issuance and the number of Common Shares (or other capital stock) (securities, as the “Expansion Factor”) case may be, issuable on such date, shall be proportionately adjusted so that a the holder of one any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Share Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such dividenddate and at a time when the share transfer books of the Corporation were open, subdivision, change, consolidation or issuance such holder would hold thereafter have been entitled to receive as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(ii) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, changeconsolidation, consolidation other change or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares and/or equivalent common shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares and/or equivalent common shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders Holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then have been in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (Shares, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares) Shares actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), or subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c))) hereof) at a price per Common Share that is less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per share basis, of the portion of the assets, evidences of indebtedness, rights cash, assets, subscription rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Right. Notwithstanding the first sentence of this Subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in Clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(b) in connection with such transaction will not appropriately protect the interests of the Holders of Rights, the Board of Directors acting in good faith may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Corporation and the Rights Agent shall have authority, with such prior approval of the holders of the Common Shares or the Holders of Rights as may be required to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Corporation shall have exercised its election as provided in Subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c) and (d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares, as the case may be (calculated to the nearest one ten-thousandth), obtained by:
(i) multiplying:
(A) the number of such Common Shares which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(h), the Corporation shall, as promptly as is practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.6, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(i) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or an authorization made pursuant to Section 3.2, the holder of any Right thereafter exercised (in the case of Section 2.3) or surrendered (in the case of Section 3.2) shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Common Shares contained in this Section 2.3, and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other securities.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(l) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the Holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such Holder a due b▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any: (i) consolidation or subdivision of Common Shares; (ii) issuance wholly for cash of any Common Share or Convertible Securities; (iii) stock dividends; or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(o) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.3, the Corporation shall promptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(ii) give, or cause the Rights Agent
Appears in 6 contracts
Sources: Shareholder Rights Plan Agreement (Keegan Resources Inc.), Shareholder Rights Plan Agreement (Jaguar Mining Inc), Shareholder Rights Plan Agreement (Nevsun Resources LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares or other securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;,
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;,
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock of the Corporation (or Convertible Securitiessecurities) in respect of, in lieu of, of or in exchange for existing Common Shares; then , except as otherwise provided in this section 3.2, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to as results from the application of the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with itit in effect following the payment or effective date of the event referred to in section 3.2(a)(i), (ii), (iii) or (iv), as the case may be. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(isection 3.2(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(bsubsection 3.2(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities security or rights)right) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares and shall confirm that a record date is fixed and, in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any the Dividend Reinvestment Plan or any employee benefit stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) dividend paid in the ordinary course or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(csubsection 3.2(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed and, in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 3.2(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or other share, as the case may be. Notwithstanding the first sentence of this subsection 3.2(d), any adjustment required by this section 3.2 shall be made no later than the earlier of:
(i) three years from the date of the transaction which mandates such adjustment; and
Appears in 4 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement (Quaterra Resources Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 4 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement (Pretium Resources Inc.), Shareholder Rights Plan Agreement (International Royalty Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(ba) In the event the Corporation shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(iv) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iivi) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSubsection 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after alter the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any the Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% 95 per cent of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of (including any such distribution made in connection with a merger or amalgamation) or evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid referred to in Common Shares) Section 2.3(a)(i), but including any dividend payable in other securities of the Corporation), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
(ii) the Expiration Date.
(e) In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in Subsection 2.3(a)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(a), (b) and (c) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by Subsections 2.3(a), (b) and (c) above, shall be made. Subject to the prior consent of the holders of the Voting Shares or the Rights obtained as set forth in Subsection 5.4(b) or (c), the Corporation and the Rights Agent shall have authority to amend this Agreement as appropriate to provide for such adjustments.
(f) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(g) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(h) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(i) Notwithstanding anything contained in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors shall determine to be advisable, in order that any:
(i) consolidation or subdivision of Common Shares;
(ii) issuance (wholly or in part for cash) of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares;
(iii) stock dividends: or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(j) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this Section 2.3, the Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Time:
(i) file with the Rights Agent and with each transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(ii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights. Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall not affect the validity of such adjustment or change.
Appears in 4 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement, Shareholder Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 4 contracts
Sources: Shareholder Rights Plan Agreement (Pretium Resources Inc.), Shareholder Rights Plan Agreement (Pretium Resources Inc.), Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such dividend or distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 4 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement, Shareholder Rights Plan
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon on the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or reinvestment program and other than a dividend payable in Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares) in lieu of (and having a regular periodic cash dividendvalue no greater than) a dividend paid in the ordinary course;
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur occurs after the Separation Time, the securities purchasable upon on exercise of Rights, shall ) will be adjusted in the manner set forth belowfollowing manner. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, changecombination, consolidation change or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
and (ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, changeconsolidation, consolidation change or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon on exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon on exercise of one Right immediately prior to such dividend, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof. To Adjustments pursuant to this subsection will be made successively whenever an event referred to in this subsection occurs.
(b) If the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If Corporation at any time after the Effective Record Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix fixes a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 9095% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal will be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date multiplied by a fraction, fraction (i) the numerator of which the numerator shall will be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.and
Appears in 3 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Subject to Section 5.19, the Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) other Securities otherwise than pursuant to any optional stock share dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect of, in lieu of, or in exchange for for, existing Common Shares in a reclassification or redesignation of Common Shares; then , an amalgamation or statutory arrangement, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under Section 3.1(a). If the Exercise Price and number of Rights outstanding are to be adjusted:
(iv) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(iivi) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will shall be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will Convertible Security shall have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof. To the extent that any such rights of purchase, exerciseexchange, conversion or exchange acquisition are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on upon the number of Common Shares (or Convertible Securities) Securities actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of its authorized capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this Section 2.3(a), shares of such capital stock Shares shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if in the case of a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, Convertible Security) per share) that is less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities Convertible Securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of shares of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Nonnon-Cash Consideration cash consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that any such rights of purchaseor warrants are not so issued or, exerciseif issued, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the 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 on upon the number of Common Shares (or securities convertible into or exchangeable for Common SharesConvertible Securities) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedrights or warrants, as the ease may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan optional dividend reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee stock option, stock purchase or similar plans other employee benefit plan (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar dividend reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the then current market price per share (determined as provided in such plansplan) of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options rights or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(a) or 2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall, subject to adjustment as provided in the penultimate sentence of Section 2.3(b), equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such .
(d) Each adjustment made pursuant to this Section 2.3 shall be made successively whenever as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance in the case of an adjustment made pursuant to Section 2.3(a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Sections 2.3(b) or (c) above.
(e) Subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with the provisions of Section 5.4(b) or (c), as applicable, if the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any Shares (other than Common Shares), or rights or warrants to subscribe for or purchase any such Shares, or Convertible Securities, in a transaction referred to in Section 2.3(a)(i) or Section 2.3(a)(iv) above and if the Board of Directors determines that the adjustments contemplated by Sections 2.3(a), (b) and (d) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding such clauses, such adjustments (rather than the adjustments contemplated by Sections 2.3(a), (b) and (d) above) shall be made and the Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(f) Anything herein to the contrary notwithstanding, no adjustment to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this Section 2.3(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. Each adjustment made pursuant to this Section 2.3 shall be calculated to the nearest cent or to the nearest one ten-thousandth of a Common Share or Right, as the case may be.
(g) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Corporation shall have exercised its election as provided in Section 2.3(i), upon each adjustment of an Exercise Price as a result of the calculations made in Sections 2.3(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares (calculated to the nearest one ten-thousandth) obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to this adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment of the Exercise Price; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price.
(i) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record immediately prior to such adjustment of the number of Rights shall become the number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the Exercise Price in effect immediately prior to the adjustment of the Exercise Price by the Exercise Price in effect immediately after adjustment of the Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Exercise Price is adjusted or any date thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days after the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to Section 2.3(h)(i), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing the additional Rights to which such holder shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution or replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the adjusted Exercise Price and shall be registered in the names of the holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(k) If, as a result of an adjustment made pursuant to Section 3.1, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other securities.
(l) In any case in which this Section 2.3 shall require that any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares or other securities upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that, in their judgment, the Board of Directors determines advisable in order that any (i) subdivision or consolidation of the Common Shares, (ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price, (iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares, (iv) stock dividends, or (v) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, and subject to applicable taxation laws, shall not be taxable to such shareholders.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon the exercise of Rights is fixed.made pursuant to this Section 2.3, the Corporation shall promptly:
(i) prepare a certificate setting forth such adjustment and a b
Appears in 3 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time date of this Agreement and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any securities (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 3 contracts
Sources: Shareholder Rights Plan Agreement (Algonquin Power & Utilities Corp.), Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement (Algonquin Power & Utilities Corp.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities Class A Shares or Class B Shares (or other securities) subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Class A Shares and Class B Shares payable in Common Class A Shares and Class B Shares (or other securities exchangeable for or convertible into or giving a right to acquire Class A Shares or Class B Shares, as the case may be, or other capital stock of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend reinvestment program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares of any class into a greater number of Common Shares;; or
(iii) consolidate combine or change the outstanding Common Shares of any class into a smaller number of Common Shares; or
(iv) issue any Common new Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then , in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and the number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Class A Shares or Class B Shares, as the case may be, (or other capital stock) (the “Expansion Factor”) that a holder of one Common Class A Share or Class B Share, as the case may be, immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Class A Shares or Class B Shares, as the case may be, with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Class A Share or Class B Share, as the case may be, (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof. To the extent that such rights of purchase, exerciseexchange, conversion or exchange acquisition are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Class A Shares or Class B Shares, as the case may be, (or Convertible Securitiessecurities convertible into or exchangeable for Class A Shares or Class B Shares, as the case may be) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs.
1. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Class A Shares or Class B Shares otherwise than in a transaction referred to in this Subsection 2.3(bsubsection 3.2(a), each such Common Class A Share or Class B Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Class A Share or Class B Share.
(cb) In the event case the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants to all holders of Class A Shares or Class B Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for Class A Shares or purchase Common Class B Shares (or Convertible Securities pursuant to which shares having the holder may acquire Common same rights, privileges and preferences as Class A Shares or Class B Shares (“equivalent Class A Shares or Class B Shares”)) or securities convertible into Class A Shares or Class B Shares or equivalent Class A Shares or Class B Shares at a price per Common Class A Share or Class B Share or per equivalent Class A Share or Class B Share (oror having a conversion price per share, if a Convertible Security having a purchase, exercise, conversion security convertible into Class A Shares or exchange price, including the price required to be paid to purchase such convertible Class B Shares or exchangeable security equivalent Class A Shares or right, per shareClass B Shares) less than 90% of the Market Price per Common Class A Share or Class B Share on such record date, the Exercise Price shall in respect of the Rights to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date multiplied by a fraction, : (i) the numerator of which the numerator shall be the number of Common Class A Shares or Class B Shares outstanding on such record date date, plus the number of Common Class A Shares or Class B Shares that the aggregate offering price of the total number of Common Class A Shares or Class B Shares and/or equivalent Class A Shares or Class B Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise conversion price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)offered) would purchase at such Market Price per Common Class A Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationClass B Share; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.and
Appears in 3 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) 2.3.1 The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event 2.3.2 If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(ia) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(iib) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iiic) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(ivd) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(i) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchasethereof, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, ; and
(ii) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Section 2.3.2 shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If this Section 2.3.2 occurs.
2.3.3 If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSections 2.3.2(a) or (iv2.3.2(d), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances circumstances, and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. .
2.3.4 If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
2.3.5 If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)Section 2.3.2, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(ca) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options or warrants (other than the Rights) entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common in respect of Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per Share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction of which which:
(i) the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and of which Share; and
(ii) the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). .
(b) In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Board. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchaserights, exercise, conversion options or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. , options or warrants.
(c) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights rights, options or warrantswarrants by the Corporation) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event 2.3.7 If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(a) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common SharesShares or Convertible Securities, but including any dividend payable in securities other than Shares or Convertible Securities); or
(b) or rights, options or warrants entitling them to subscribe for or purchase Shares (or Convertible Securities in respect of Shares) at a price per Share (or, in the case of such a Convertible Security, having a conversion, exchange or exercise price per Share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Share on such record date (excluding those rights, options or warrants referred to in Subsection 2.3(c)Section 2.3.6), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights rights, options warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
2.3.8 Each adjustment made pursuant to this Section 2.3 shall be made as of:
(a) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Section 2.3.2; and
(b) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Section 2.3.6 or 2.3.7, subject to readjustment to reverse the same if such distribution shall not be made.
2.3.9 If the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any securities (other than Shares), or rights, options or warrants to subscribe for or purchase any such securities, or Convertible Securities in respect of any such securities, in a transaction referred to in any of Sections 2.3.2(a) to 2.3.2(d), inclusive, if the Board acting in good faith determines that the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7 in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Section 5.4.2, determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Sections 2.3.2, 2.3.6 and 2.3.7, such adjustments, rather than the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7, shall be made upon the Board providing written certification thereof to the Rights Agent as set forth in
Appears in 3 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall will at any time after the Effective Time Record Date and prior to the Expiration Date:Time,
(i) make or declare or pay a stock dividend on the its Common Shares payable in Common Shares (or other capital stock securities exercisable or exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exercisable or exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall will occur after the Separation Time, the securities purchasable upon exercise of Rights, shall will be adjusted as of the payment or effective date in respect of that event in the manner set forth out below. .
(c) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such the adjustment shall will be equal to the Exercise Price in effect immediately prior to such the adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such that stock dividend, subdivision, change, consolidation combination or issuance would hold thereafter after as a result thereof (assuming the exercise of all such purchasethat stock dividend, exercisesubdivision, conversion change, combination or exchange rights, if any)issuance; and
(ii) each Right held prior to such the adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such the stock dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with itit in effect following the payment or effective date of the event referred to in Sections 2.3(b)(i), 2.3(b)(ii), 2.3(b)(iii) or 2.3(b)(iv), as the case may be. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such the adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such the stock dividend, subdivision, change, consolidation combination or issuance would hold thereafter after as a result thereof. To the extent of that such rights of purchasestock dividend, exercisesubdivision, conversion change, combination or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsissuance. If after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue issues any shares securities of capital stock the Corporation other than Common Shares in a transaction of a type described in Clause Sections 2.3(b)(i) or (iv2.3(b)(iv), shares of such capital stock shall those securities will be treated herein in this Agreement as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to give effect such to that treatment. If an .
(d) In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix fixes a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all holders of Common Shares entitling them (for a period expiring within 45 calendar days after such that record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such the convertible or exchangeable security or right, right per shareCommon Share) less than 90% of the Market Price per Common Share on such the record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such the record date shall equal will be determined by multiplying the Exercise Price in effect immediately prior to such the record date multiplied by a fraction, the numerator of which the numerator shall will be the number of Common Shares outstanding on such the record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such the Market Price per Common Share Share, and the denominator of which the denominator shall will be the number of Common Shares outstanding on such the record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). .
(e) In case such a subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration shall that consideration will be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall will be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall will be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to The adjustment will be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of event that the Board of Directorsrights or warrants are not so issued or if issued, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereoftheir expiration, the Exercise Price shall will be readjusted to be the Exercise Price which would then be in effect if the record date had not been fixed, or to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such those rights. Such adjustment shall be made successively whenever such a record date is fixed. , options or warrants, as the case may be.
(f) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such that right to purchase is in no case evidenced by the delivery of rights or warrants) shall not will be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall cases, the right to purchase Common Shares is at a price per share Common Share of not less than 90% of the current market price Market Price per share Common Share (determined as provided in such those plans) of the Common Shares.
(dg) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix fixes a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or indebtedness, assets (other than cash and other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or Shares on the liquidation of the Corporation), rights, options or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(d)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such that record date will equal be determined by multiplying the Exercise Price in effect immediately prior to such that record date by a fraction, the numerator of which will be the Market Price per Common Share on the record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination will be described in a statement filed with the Rights Agent and will be binding on the Rights Agent and the holders of Rights), on a per Common Share basis, of the portion of the assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to and the securities purchasable upon exercise denominator of one Rightwhich will be the Market Price per Common Share. Such adjustment shall Those adjustments will be made successively whenever such a record date is fixed, and in the event that the distribution is not so made, the Exercise Price will be adjusted to be the Exercise Price which would have been in effect if the record date had not been fixed.
(h) Notwithstanding anything in this Agreement to the contrary, no adjustment in the Exercise Price will be required unless the adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Section 2.3(h) are not required to be made will be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 will be made to the nearest cent or to the nearest ten-thousandth of a Common Share. Notwithstanding the first sentence of this Section 2.3(h), any adjustment required by this Section 2.3 will be made no later than the earlier of (i) three years from the date of the transaction which mandates the adjustment or (ii) the Expiration Time.
(i) In the event the Corporation at any time after the Record Time and prior to the Separation Time issues any securities of the Corporation (other than the Common Shares), or rights, options or warrants to subscribe for or purchase any securities of the Corporation, or securities convertible into or exchangeable for any securities of the Corporation, in a transaction referred to in Section 2.3(b)(i) or 2.3(b)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Sections 2.3(b), (d) and (g) above in connection with the transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Sections 2.3(b), (d) and (g) above, that adjustment, rather than the adjustments contemplated by Sections 2.3(b), (d) and (g) above, will be made. Subject to Section 5.6 and subject to the approval of each stock exchange on which the Common Shares are listed for trading at the relevant time, the Corporation will amend this Agreement as appropriate to provide for that adjustment.
(j) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price under this Agreement will evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time under this Agreement upon exercise of a Right immediately prior to that issue, all subject to further adjustment as provided in this Agreement.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates issued before or after any such adjustment or change may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued under this Agreement.
(l) In any case in which this Section 2.3 requires that any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of that event the issuance to the holder of any Right exercised after that record date the number of Common Shares and other securities of the Corporation, if any, issuable upon that exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon that exercise on the basis of the Exercise Price in effect prior to the adjustment; provided, however, that the Corporation delivers to that holder an appropriate instrument evidencing that holder’s right to receive those additional Common Shares (fractional or otherwise) or securities upon the occurrence of the event requiring the adjustment.
(m) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation will be entitled to make those reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors determines to be advisable in order that any:
(i) consolidation or subdivision of the Common Shares,
(ii) issuance (wholly or in part for cash) of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares,
(iii) Common Share dividends, or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, subsequently made by the Corporation to holders of its Common Shares, will not be taxable to the shareholders.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.3, the Corporation shall promptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(ii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights; provided that failure to file such certificate or cause such notice to be given as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 3 contracts
Sources: Shareholder Rights Plan Agreement (Primo Water Corp /CN/), Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Subsection 3.1(a).
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock regular dividend program, Dividend Reinvestment Plan or dividend payable in reinvestment plan of the Corporation providing for the acquisition of Common Shares in lieu of a regular periodic cash dividendShares;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, in each case at the relevant time, shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with itit following the payment or effective date of the event referred to in this Section 2.3. For greater certainty, if the securities purchasable upon the exercise of Rights are to be adjusted, the securities purchasable upon the exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon the exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares, shares having the same rights, privileges, restrictions and conditions as Common Shares (“equivalent common shares”), or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares and/or equivalent common shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share. For the purposes of this transaction, Market Price means the average of the daily closing prices per Common Share and on each of the 20 consecutive Trading Days ending five days prior to such date on the principal Canadian stock exchange on which such securities are listed; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares and/or equivalent common shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders Holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then have been in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (Shares, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares) Shares actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c))) hereof, the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per share basis, of the portion of the assets, evidences of indebtedness, rights cash, assets, rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then-outstanding Common Shares into a greater number of Common Shares;
(iiiii) consolidate or change the then-outstanding Common Shares into a smaller number of Common Shares; or, in the event that the Corporation shall at any time after the Separation Time and prior to the Expiration Time:
(iii) declare or pay a distribution on the Voting Shares payable in Voting Shares or Convertible Securities other than pursuant to any Dividend Reinvestment Plan; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows (without duplication with respect to Section 2.1):
(v) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchasethereof, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For , and
(vi) for greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this subsection 2.3(b) occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubsections 2.3(b)(iii) or (iv2.3(b)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend agree to amend, supplement or supplement restate this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common ShareShare (as provided in Section 2.1).
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per security (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction of which which:
(i) the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and of which Share; and
(ii) the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. rights or warrants.
(g) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan or similar share purchase plan, the right to purchase Common Shares is at a price per share security of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dh) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares); or
(ii) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares other than Common Shares (or Convertible Securities in respect of the Voting Shares other than Common Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per security (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(csubsection 2.3(f)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(i) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to subsection 2.3(b); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsections 2.3(f) or 2.3(h), subject to readjustment to reverse the same if such distribution shall not be made.
(j) In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any securities (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or Convertible Securities in respect of any such securities, in a transaction referred to in any of subsections 2.3(b), 2.3(f) and 2.3(h), inclusive, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections 2.3(b), 2.3(f) and 2.3(h) in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in subsection 5.4(b), determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(b), 2.3(f) and 2.3(h), such adjustments, rather than the adjustments contemplated by subsections 2.3(b), 2.3(f) and 2.3(h), shall be made upon the Board of Directors providing written certification thereof to the Rights Agent as set forth in subsection 2.3(r). The Corporation and the Rights Agent shall amend, supplement or restate this Agreement as appropriate to provide for such adjustments.
(k) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(k) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this subsection 2.3 shall be calculated to the nearest cent.
(l) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(m) Unless the Corporation shall have exercised its election, as provided in subsection 2.3(n), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 2.3(f) and 2.3(h), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(n) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 2.3(n), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(o) In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(p) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any:
(i) subdivision or consolidation of the Common Shares;
(ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price;
(iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares;
(iv) stock dividends; or
(v) issuance of rights or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(q) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to represent the securities so purchasable which were represented in the initial Rights Certificates issued hereunder
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (ImmunoPrecise Antibodies Ltd.), Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights.
(a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration Date:Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;Plan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares Shares, Convertible Securities or other capital stock share of the Corporation (or Convertible Securities) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (“equivalent common shares”) or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction:
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares and/or equivalent common shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares and/or equivalent common shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) regular period cash dividend or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), or subscription rights, options or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(b)), at a price per Common Share (including, in the case of a Convertible Security with an exercise or conversion price, the price required to be paid to purchase such Convertible Security) that is less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per share basis, of the portion of the assets, evidences of indebtedness, rights cash, assets, subscription rights, options or warrants so to be distributed applicable distributed; and
(ii) the denominator of which shall be such Market Price per Common Share.
(d) Notwithstanding anything herein to the securities purchasable upon exercise contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one Rightper cent (1%) in the Exercise Price; provided, however, that any adjustments which by reason of this Section 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. Such adjustment All calculations under Section 2.3 shall be made successively whenever to the nearest cent or to the nearest ten-thousandth of a Common Share or Right. Notwithstanding the first sentence of this Section 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such a record date is fixed.adjustment; or
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation EIFH shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend distribution on the Common Shares payable in Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Shares or other capital stock securities of the Corporation (or Convertible SecuritiesEIFH) other than pursuant to any optional stock dividend program, share distribution program or Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Shares or other capital stock securities of the Corporation (or Convertible SecuritiesEIFH) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(iv) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividenddistribution, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iivi) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividenddistribution, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividenddistribution, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdistribution, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation EIFH shall issue any shares units of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(i2.3(a)(i) or (iv), shares units of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation EIFH and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation EIFH shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation EIFH shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants to all holders of Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common purchase Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) EIFH Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any the Dividend Reinvestment Plan or any employee benefit, option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the CorporationEIFH; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% 95 per cent of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation EIFH shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger, arrangement or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid distribution referred to in Common Shares) Clause 2.3(a)(i), but including any distribution payable in other securities of EIFH), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Share on such record date, less the fair market value (as determined in good faith by the Board of EIFH Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
(ii) the Expiration Time.
(e) In the event EIFH shall at any time after the Record Time and prior to the Separation Time issue any securities in the capital of EIFH (other than Shares), or rights, options or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in Clause 2.3(a)(i) or (iv), if the EIFH Directors acting in good faith determine that the adjustments contemplated by Subsections 2.3(a), (b) and (c) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the EIFH Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(a), (b) and
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities shares subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;,
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, or in exchange for existing Common Shares in accordance with the provisions attaching to such Shares, in a reclassification, amalgamation, statutory arrangement or consolidation; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities Shares purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:,
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchasethereof, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities Shares purchasable upon exercise of Rights are to be adjusted, the securities Shares purchasable upon exercise of each Right after such adjustment will be the securities Shares that a holder of the securities Shares purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthis subsection 2.3(a), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior towill not consolidate with, amalgamate with or into or enter into a statutory arrangement with, any adjustment required pursuant other Person unless such Person agrees to Section 3.1be bound by the terms of an amendment effecting such treatment. Adjustments pursuant to Section 2.3 shall be made successively, whenever an In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding section, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate Certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options options, or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights to so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights to so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) of the Corporation, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) of the Common Shares. Such adjustment shall be made successively whenever such a record date is fixed and, in the event that such rights, options or warrants are not so issued, the Exercise Price in respect of the Rights shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as shall be determined in good faith by the Board of DirectorsDirectors of the Corporation, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights, of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment adjustments shall be made successively whenever such a record date is fixed and, in the event that such distribution is not so made, the Exercise Price in respect of the Rights shall be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection 2.3(a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection 2.3(b) or (c) above. Any adjustment pursuant to subsections 2.3(a), (b), (c) and (e) hereof shall be made successively whenever an event referred to herein shall occur, subject to the other subsections of this section.
(e) In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in sections 2.3(a)(i) or (a)(iv) above, if the Board of Directors of the Corporation acting in good faith determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors of the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by subsections 2.3(a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(f) Notwithstanding anything herein to the contrary, no adjustment in an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. Each adjustment to the Exercise Price made pursuant to this section 2.3 shall be calculated to the nearest cent or the nearest ten-thousandth of a Common Share or other Share as the case may be. Whenever an adjustment to the Exercise Price is made pursuant to this section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and a brief summary thereof to each holder of Rights.
(g) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(h) If as a result of an adjustment made pursuant to section 3.1 or section 3.2, the holder of any Right thereafter exercised shall become entitled to receive any Shares other than Common Shares, thereafter the number of such other Shares so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained in this section 2.3, and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other Shares.
(i) Unless the Corporation shall have exercised its election as provided in subsection 2.3(j), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 2.3(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares (calculated to the nearest one ten-thousandth), obtained by:
(i) multiplying (x) the number of such Shares covered by a Right immediately prior to this adjustment by (y) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(j) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number and kind of Shares for which such Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one tenthousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 2.3(j), the Corporation-shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights of Certificates evidencing, subject to section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(k) In any case in which this section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Shares and other securities of the Corporation, if any, issuable upon such existence over and above the number of Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder’s right to receive such additional Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments exp
Appears in 2 contracts
Sources: Shareholder Protection Rights Plan Agreement (AnorMED Inc.), Shareholder Protection Rights Plan Agreement (AnorMED Inc.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares or other securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;,
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;,
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock of the Corporation (or Convertible Securitiessecurities) in respect of, in lieu of, of or in exchange for existing Common Shares; then , except as otherwise provided in this section 3.2, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to as results from the application of the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with itit in effect following the payment or effective date of the event referred to in clause 3.2(a)(i), (ii), (iii) or (iv), as the case may be. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 3.2(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(bsubsection 3.2(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities security or rights)right) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares and shall confirm that a record date is fixed and, in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any the Dividend Reinvestment Plan or any employee benefit stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) dividend paid in the ordinary course or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(csubsection 3.2(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed and, in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 3.2(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or other share, as the case may be. Notwithstanding the first sentence of this subsection 3.2(d), any adjustment required by this section 3.2 shall be made no later than the earlier of:
(i) three years from the date of the transaction which mandates such adjustment; and
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Quaterra Resources Inc), Shareholder Rights Plan Agreement (Quaterra Resources Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Subsection 3.1(a).
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities other than pursuant to any optional stock regular dividend program, Dividend Reinvestment Plan or dividend payable in reinvestment plan of the Corporation providing for the acquisition of Common Shares in lieu of a regular periodic cash dividendShares;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares Shares, Convertible Securities or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, of or in exchange for existing Common SharesShares except as otherwise provided in this Section 2.3; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 Subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 Subsection 2.3(a) occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares and/or equivalent common shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares and/or equivalent common shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders Holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then have been in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (Shares, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares) Shares actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), or subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c))) hereof) at a price per Common Share (including, in the case of a Convertible Security with an exercise or conversion price, the price required to be paid to purchase such Convertible Security) that is less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per share basis, of the portion of the assets, evidences of indebtedness, rights cash, assets, subscription rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Right. Notwithstanding the first sentence of this Subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in Clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(b) in connection with such transaction are not applicable or will not appropriately protect the interests of the Holders of Rights, the Board of Directors acting in good faith may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Corporation and the Rights Agent shall have authority, with such prior approval of the holders of the Common Shares or the Holders of Rights as may be required to amend this Agreement in accordance with Section 5.4 hereof, as appropriate to provide for such adjustments.
(g) Unless the Corporation shall have exercised its election as provided in Subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c) and (d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares, as the case may be (calculated to the nearest one ten-thousandth), obtained by:
(i) multiplying:
(A) the number of such Common Shares which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by multiplying (i) the number of Rights held prior to such adjustment by (ii) the quotient obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(h), the Corporation shall, as promptly as is practicable, cause to be distributed to Holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such Holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such Holders of record in substitution and replacement for the Rights Certificates held by such Holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such Holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of Holders of record of Rights Certificates on the record date specified in the public announcement.
(i) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall, subject to section 2.3(h) evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(j) If as a result of an adjustment made pursuant to this Section 2.3, the Holder of any Right thereafter exercised (in the case of Section 2.3) shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Common Shares contained in this Section 2.3, and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other securities.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(l) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the Holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such ex
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Americas Silver Corp), Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon on the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or reinvestment program and other than a dividend payable in Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares) in lieu of (and having a regular periodic cash dividendvalue no greater than) a dividend paid in the ordinary course;
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur occurs after the Separation Time, the securities purchasable upon on exercise of Rights, shall ) will be adjusted in the manner set forth belowfollowing manner. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, changecombination, consolidation change or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
and (ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, changeconsolidation, consolidation change or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon on exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon on exercise of one Right immediately prior to such dividend, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof. To Adjustments pursuant to this subsection will be made successively whenever an event referred to in this subsection occurs.
(b) If the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If Corporation at any time after the Effective Record Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix fixes a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 9095% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal will be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date multiplied by a fraction, fraction (i) the numerator of which the numerator shall will be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and (ii) the denominator of which the denominator shall will be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall be is in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration shall consideration will be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall will be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall will be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to adjustment will be credited for the issue of made successively whenever such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue a record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchaserights, exercise, conversion options or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall will be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the on exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. , options or warrants.
(c) For purposes purpose of this Agreementagreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not will be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the then current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the making of a distribution to all or substantially all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation) of (i) evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), (ii) or rights, options or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to acquire Common Shares) (excluding those referred to in Subsection 2.3(csubsection 3.2(b))) at a price per Common Share (or, if a security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) that is less than 95% of the Market Price per Common Share on the second Trading Day immediately preceding such record date or (iii) other securities of the Corporation, the Exercise Price shall will be adjustedadjusted as follows. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights assets, rights, options or warrants or other securities so to be distributed applicable to the securities purchasable upon on exercise of one Right. Such adjustment shall adjustments will be made successively whenever such a record date is fixed and, if such distribution is not so made, the Exercise Price in respect of the Rights will be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything in this agreement to the contrary, no adjustment of the Exercise Price will be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this subsection are not required to be made will be carried forward and taken into account in any subsequent adjustment. All calculations under section 3.2 will be made to the nearest cent or to the nearest ten-thousandth of a Common Share or other share, as the case may be.
(f) If as a result of an adjustment made pursuant to section 4.1, the holder of any Right thereafter exercised will become entitled to receive any shares other than Common Shares, thereafter the number of such other shares so receivable upon exercise of any Right and the applicable Exercise Price thereof will be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Common Shares contained in this section 3.2, and the provisions of this agreement with respect to the Common Shares will apply on like terms to any such other shares.
(g) All Rights originally issued by the Corporation subsequent to any adjustment made to the Exercise Price will evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Corporation has exercised its election as provided in subsection (i), upon each adjustment of an Exercise Price as a result of the calculations made in subsections (b) and (d), each Right outstanding immediately prior to the making of such adjustment will thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(i) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights will be exercisable for the number of Common Shares for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights will become that number of Rights (calculated to the nearest one ten- thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation will make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, will be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection, the Corporation, as promptly as is practicable, will cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to section 6.4, the additional Rights to which such holders will be entitled as a result of such adjustment, or, at the option of the Corporation, will cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders will be entitled after such adjustment. Rights Certificates to be so distributed will be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and will be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates previously and thereafter issued may continue to express the relevant Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(k) In any case in which this section requires that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer, until the occurrence of such event, the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation delivers to such holder a due bill or other appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this section to the contrary, the Corporation will be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this section, as and to the extent that in its good faith judgment the Board of Directors determines to be advisable in order that any (i) consolidation or subdivision of Common Shares, (ii) issuance wholly for cash of any Common Share or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this section, hereafter made by the Corporation to holders of its Common Shares, will not be taxable to such shareholders.
(m) The Corporation covenants and agrees that, after the Separation Time, except as permitted by section 6.1 or 6.5, it will not take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action would diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this section, the Corporation will promptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(ii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights. The failure to file such certificate or cause such notice to be given as aforesaid, or any defect therein, will not affect the validity of any such adjustment or change.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Effective Date and prior to the Expiration Time issue any securities (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Algonquin Power & Utilities Corp.), Shareholder Rights Plan Agreement (Algonquin Power & Utilities Corp.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable that were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement (Open Text Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Subject to Section 5.19, the Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (Shares or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares) other otherwise than pursuant to any optional stock share dividend program, Dividend Reinvestment Plan dividend reinvestment plan or if the dividend payable is paid in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (Shares or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares) in respect of, in lieu of, or in exchange for for, existing Common Shares in a reclassification or redesignation of Common Shares; then , an amalgamation or a statutory arrangement, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and subsection 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under subsection 3.1(a) . If the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stockShares of capital) (the “Expansion Factor”) that a holder of one (1) Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will shall be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stockwhole share or security exchangeable for or convertible into a whole Share of capital) will shall have exactly one (1) Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one (1) Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof. To the extent that any such rights of purchase, exerciseexchange, conversion or exchange acquisition are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on upon the number of Common Shares (or Convertible Securitiessecurities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of its authorized capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this subsection 2.3(a), such shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one (1) new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if in the case of a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per share)) that is less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of shares of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Nonnon-Cash Consideration cash consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that any such rights of purchaseor warrants are not so issued or, exerciseif issued, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the 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 on upon the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedrights or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan optional dividend reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee stock option, stock purchase or similar plans other employee benefit plan (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar dividend reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the then current market price per share (determined as provided in such plansplan) of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(a) or 2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall, subject to adjustment as provided in the penultimate sentence of subsection 2.3(b), equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.(1)
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Energy Fuels Inc), Shareholder Rights Plan Agreement (Energy Fuels Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would be in effect based upon the number of Common Shares (or Convertible Securities) actually issued upon the conversion, exercise or exchange of such Convertible Securities or upon exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) subparagraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubparagraph 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subparagraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subparagraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subparagraph 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subparagraph 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in subparagraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subparagraphs (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subparagraphs (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subparagraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subparagraph 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 2 contracts
Sources: Shareholder Protection Rights Plan Agreement (Greenfire Resources Ltd.), Shareholder Protection Rights Plan Agreement (Greenfire Resources Ltd.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities Common Shares (or other securities) subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend reinvestment program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares of any class into a greater number of Common Shares;; or
(iii) consolidate combine or change the outstanding Common Shares of any class into a smaller number of Common Shares; or
(iv) issue any new Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then , in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and the number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (for the purpose of this Agreement “Expansion Factor”” shall mean the number of Common Shares (or other capital stock) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (divided by one Common Share, assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(ii) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Theratechnologies Inc.), Shareholder Rights Plan Agreement (Theratechnologies Inc.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares, whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. as follows:
(A) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “"Expansion Factor”") that a holder of one Common ----------------- Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if .
(B) If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior .
(c) Adjustments pursuant to the expiration thereof, the Exercise Price Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares Subsection 2.3(b) occurs.
(or Convertible Securitiesd) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an 3.1 hereof.
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, ;
(i) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(ii) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon on the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedrights or warrants. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment or share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price Market Price per share (determined as provided in such plans) of the Common Shares.
(dg) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of (i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), (ii) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c2.3(f))) or (iii) other securities of the Corporation, the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants or other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(h) Each adjustment made pursuant to Section 2.3 shall be made as of (i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b) above; and
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Corel Corp), Shareholder Rights Plan Agreement (Corel Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities Shares subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event that the Corporation shall at any time after the Effective Amendment Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment program or a dividend payable in Common Voting Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for the existing Common SharesShares in a reclassification, amalgamation, merger, statutory arrangement or consolidation; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and the number of Rights outstanding are to be adjusted:
adjusted (iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon the exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon the exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter or as a result thereof. To the extent that such rights of purchaseIf, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Amendment Time and prior to the Expiration DateTime, the Corporation shall issue any shares of Shares or capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 3.2(a)(i) or (iv), such shares of such or capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which that would require an adjustment under both this Section 2.3 section 3.2 and Section 3.1section 4.1 hereof, the adjustment provided for in this Section 2.3 section 3.2 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1section 4.1 hereof. Adjustments Such adjustment pursuant to Section 2.3 this subsection 3.2(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 3.2(a) occurs. If In the event the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common purchase or subscribe for Voting Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Voting Shares, having a purchaseconversion, exerciseexchange, conversion or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementsubsection (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or director, officer or employee benefit or similar plans or stock option plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event that the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 3.2(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this section 3.2 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event that the Corporation shall at any time after the Amendment Time and prior to the Expiration Time issue any Shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall at any time after the Effective Separation Time and prior to the Expiration DateTime:
(iA) declare or pay a dividend on the Common Shares of the Corporation payable in Common Shares or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(iiB) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iiiC) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(ivD) issue any Common Shares or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares) in respect of, in lieu of, or in exchange for existing Common Shares; then , the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable issuable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjustedas follows:
(iE) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exerciseexchange, conversion or exchange acquisition rights, if any); and
(iiF) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares .
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Time, issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cd) In the event the Corporation shall at any time If, after the Effective Separation Time and prior to the Separation Time fix Expiration Time, the Corporation shall issue any shares of capital stock other than Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire shares of any such capital stock) in a transaction of a type described in Clause 2.3(b)(A) or 2.3(b)(D), the shares of such capital stock shall be treated herein as nearly equivalent to Common Shares to the extent practicable and appropriate under the circumstances and the shares purchasable upon exercise of Rights shall be adjusted as necessary such that the shares purchasable upon exercise of each Right after such adjustment will be the shares that a holder of the shares purchasable upon exercise of one Right immediately prior to such issuance would hold thereafter as a result of such issuance. Notwithstanding Section 5.5, the Corporation and the Rights Agent are authorized and agree to amend this Agreement in order to give effect to the foregoing.
(e) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1 hereof.
(f) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments made pursuant to this Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share, as the case may be.
(g) If as a result of an adjustment made pursuant to this Section 2.3, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained in this Section 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other securities.
(h) All Rights issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(i) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(j) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to all holders the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(k) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors shall determine to be advisable in order that any (i) subdivision or consolidation of the Common Shares, (ii) issuance (wholly or in part for cash) of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants entitling them referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, subject to applicable taxation laws, shall not be taxable to such shareholders.
(for a period expiring within 45 days l) The Corporation covenants and agrees that, after such record date) to subscribe for or purchase Common Shares the Separation Time, it will not, except as permitted by the provisions hereof, take (or Convertible Securities pursuant permit any Subsidiary of the Corporation to which take) any action if at the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion time such action is taken it is reasonably foreseeable that such action will diminish substantially or exchange price, including otherwise eliminate the price required benefits intended to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith afforded by the Board of Directors Rights.
(by Board Resolutionm) whose determination shall be described in a resolution (and Whenever an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjustment to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Rightthe Rights is made pursuant to this Section 2.3, the Corporation shall promptly:
(A) file with the Rights Agent and with the transfer agent for the Common Shares (if different than the Rights Agent) a certificate specifying the particulars of such adjustment, and
(B) cause notice of the particulars of such adjustment to be given to the holders of the Rights. Such adjustment Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall be made successively whenever not affect the validity of any such a record date is fixedadjustment.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Lions Gate Entertainment Corp /Cn/), Shareholder Rights Plan Agreement (Lions Gate Entertainment Corp /Cn/)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidate, combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 this subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per shareCommon Share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan, stock dividend program and/or any Common Share purchase plan providing for the reinvestment of dividends, receipt of dividends in the form of Common Shares or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar planinterest reinvestment plan or stock dividend program, the right to purchase Common Shares is at a price per share Common Share of not less than 90% of the current market price per share Common Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into, exchangeable for or carrying a right to subscribe for or purchase Common Shares) at a price per Common Share (or in the case of a Convertible Security, having a conversion, exchange, exercise, subscription or purchase price, including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, consolidation, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any securities of the Corporation (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsection 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with the transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Pembina Pipeline Corp), Shareholder Agreements
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation Company shall at any time after the Effective Time date of this Agreement and prior to the Expiration Date:Time,
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(iv) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iivi) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with itit in effect following the payment or effective date of the event referred to in Clause 2.3(a)(i), (ii), (iii) or (iv), as the case may be. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration DateTime, the Corporation Company shall issue any shares securities of capital stock the Company other than Common Shares in a transaction of a type described in Clause 2.3(b)(iClauses 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to give effect such treatment. If an thereto.
(b) In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation Company shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all holders of Common Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per shareCommon Share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share Share, and the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaseor warrants are not so issued or if issued, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans share compensation arrangement with employees (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the CorporationCompany; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share Common Share of not less than 9095% of the current market price Market Price per share Common Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation Company shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution dividend to all holders of Common Shares of evidences of indebtedness or indebtedness, assets (other than cash and other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or Shares on the liquidation of the Company), rights, options or warrants (excluding those referred to in Subsection 2.3(c)2.3(b) hereof), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per Common Share basis, of the portion of the assets, assets or evidences of indebtedness, rights or warrants indebtedness so to be distributed applicable to and the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such dividend is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share. Notwithstanding the first sentence of this Subsection 2.3(d)), any adjustment required by this Section 2.3 shall be made no later than the Expiration Date.
(e) In the event the Company shall at any time after the Record Time and prior to the Separation Time issue any securities of the Company (other than the Common Shares), or rights, options or warrants to subscribe for or purchase any such securities of the Company, or securities convertible into or exchangeable for any such securities of the Company, in a transaction referred to in Clause 2.3(a)(i) or (iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchaseable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(a), (b) and (c) above, such adjustment, rather than the adjustments contemplated by Subsections 2.3(a), (b) and (c) above, shall be made. Subject to Subsection 5.4 and subject to the approval of each stock exchange on which the Common Shares are listed for trading at the relevant time, the Company shall amend this Agreement as appropriate to provide for such adjustments.
(f) Each Right originally issued by the Company subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(g) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(h) In any case in which this Section 2.3 shall require that any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Company, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Company, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(i) Notwithstanding anything in this Section 2.3 to the contrary, the Company shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors shall determine to be advisable in order that any:
(i) consolidation or subdivision of the Common Shares,
(ii) issuance (wholly or in part for cash) of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares,
(iii) Common Share distributions, or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company to holders of its Common Shares, shall not be taxable to such shareholders.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Cott Corp /Cn/), Shareholder Agreement (Cott Corp /Cn/)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, program or Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiy) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i2.3(a)(i) or (iv2.3(a)(iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1Subsection 3.1(a) hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.1Subsection 3.1(a) hereof. Adjustments pursuant to Section 2.3 Subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 Subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any stock dividend plan or Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Cenovus Energy Inc.), Shareholder Rights Plan Agreement (Cenovus Energy Inc.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time date of this Agreement and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such dividend or distribution shall not be made.
(e) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any securities (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Skeena Resources LTD), Shareholder Rights Plan Agreement (Skeena Resources LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Section 3.1.
(b) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(v) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, ; and
(vi) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividenddistribution, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Section 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this Section 2.3(b) occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause Sections 2.3(b)(i) or (iv2.3(b)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances circumstances, and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(e) If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Voting Shares otherwise than in a transaction referred to in this Subsection Section 2.3(b), each such Common Voting Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Voting Share.
(cf) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Voting Shares of rights, options or warrants (other than the Rights) entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Voting Shares (or Convertible Securities pursuant to which the holder may acquire Common in respect of Voting Shares) at a price per Common Voting Share (or, if in the case of such a Convertible Security Security, having a purchase, an exercise, conversion or exchange price, price per Voting Share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Voting Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) of which the numerator shall be the number of Common Voting Shares outstanding on such record date plus the number of Common Voting Shares that which the aggregate offering price of the total number of Common Voting Shares so to be offered (and/or the aggregate initial conversionexercise, conversion or exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Voting Share; and
(ii) of which the denominator shall be the number of Common Voting Shares outstanding on such record date plus the number of additional Common Voting Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Board. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange Convertible Securities are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Voting Shares (or securities convertible into or exchangeable for Common Voting Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. , options or warrants.
(g) For purposes of this Agreement, the granting of the right to purchase Common Voting Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantsConvertible Securities by the Corporation) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Voting Shares is at a price per share of not less than 90% of the current market price Market Price per share Voting Share (determined as provided in such plans) of the Common Voting Shares.
(dh) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Voting Shares of of:
(i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common SharesVoting Shares or Convertible Securities, but including any dividend payable in securities other than Voting Shares or Convertible Securities); or
(ii) or rights, options or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per share (or, in the case of such a Convertible Security, having an exercise, conversion or exchange price per Voting Share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Voting Share on such record date (excluding those rights, options or warrants referred to in Subsection 2.3(cSection 2.3(f)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights rights, options warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(i) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Section 2.3(b); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Section 2.3(f) or 2.3(h), subject to readjustment to reverse the same if such distribution shall not be made.
(j) If the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares (other than Voting Shares), or rights, options or warrants to subscribe for or purchase any such shares, or Convertible Securities in respect of any such shares, in a transaction referred to in any of Sections 2.3(b)(i) to 2.3(b)(iv), inclusive, if the Board acting in good faith determines that the adjustments contemplated by Sections 2.3(b), 2.3(f) and 2.3(h) in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Section 5.4(b), determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Sections 2.3(b), 2.3(f) and 2.3(h), such adjustments, rather than the adjustments contemplated by Sections 2.3(b), 2.3(f) and 2.3(h), shall be made upon the Board providing written certification thereof to the Rights Agent as set forth in Section 2.3(r). The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(k) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% in such Exercise Price; provided, however, that any adjustments which by reason of this Section 2.3(k) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent.
(l) All Rights originally issued by the Corporation prior or subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(m) Unless the Corporation shall have exercised its election, as provided in Section 2.3(n), upon each adjustment of an Exercise Price as a result of the calculations made in Sections 2.3(f) and 2.3(h), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Voting Shares obtained by:
(i) multiplying:
(A) the number of Voting Shares covered by a Right immediately prior to such adjustment; by
(B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(n) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Voting Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Voting Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 2.3(n), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(o) In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Voting Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Voting Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Voting Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(p) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board shall determine to be advisable in order that any:
(i) subdivision or consolidation of the Voting Shares;
(ii) issuance wholly for cash of any Voting Shares at less than the Market Price;
(iii) issuance wholly for cash of any Voting Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Voting Shares;
(iv) stock dividends; or
(v) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Voting Shares, shall not be taxable to such shareholders or shall have more favourable tax consequences to such shareholders.
(q) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to represent the securities so purchasable following such adjustment or change.
(r) Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Voting Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall not
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (SSR Mining Inc.), Shareholder Rights Plan Agreement (Silver Standard Resources Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Expiration Date:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change split the then-outstanding Common Shares into a greater number of Common Shares;
(iii) combine or consolidate or change the then-outstanding Common Shares into a smaller number of Common Shares or effect a reverse split of the outstanding Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, or in exchange for existing Common SharesShares in a reclassification or recapitalization; then then, and in each such event, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation TimeDate, the securities Preferred Shares purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
, (ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, changecombination, consolidation or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iixi) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, changecombination, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities Preferred Shares purchasable upon exercise of Rights are to be adjustedsplit, subdivided, or combined, or if any dividend (whether of cash or securities) is declared with respect thereto, the securities Preferred Shares purchasable upon exercise of each Right after such adjustment event will be automatically adjusted to be that number of the securities Preferred Shares that a holder of the securities Preferred Shares purchasable upon exercise of one Right (regardless of whether a Right shall then be exercisable) immediately prior to such dividendsplit, subdivision, changecombination, consolidation or issuance dividend would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Record Date and prior to the Expiration Date, the Corporation Company shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this Section 2.3(a), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances circumstances, and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall the Company will not consolidate with, merge with or into, or enter into an arrangement with any other Person unless such Person agrees to be made prior to, any adjustment required pursuant to Section 3.1bound by the terms of an amendment effecting such treatment. Adjustments pursuant to Section 2.3 shall be made successively, whenever an In the event referred to in Section 2.3 occurs. If the Corporation Company shall at any time after the Effective Time Record Date and prior to the Separation Time Date issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Separation Time Date fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares), having a purchaseconversion, exerciseexchange, conversion or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange exchange, or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share Price, and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable exchangeable, or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Company's Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationCompany; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than ninety percent (90% %) of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Separation Time Date fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Company's Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such .
(d) Each adjustment made pursuant to this Section 2.3 shall be made successively whenever such a as of:
(i) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above; and
(ii) the payment or effective date for the applicable dividend, subdivision, change, combination, or issuance, in the case of an adjustment made pursuant to subsection (a) above.
(e) In the event the Company shall at any time after the Record Date and prior to the Separation Date issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by clauses (a), (b), and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Company may determine what other adjustments to the Exercise Price, number of Rights, and/or Preferred Shares purchasable upon exercise of Rights would be appropriate and, notwithstanding clauses (a), (b), and (c) above, such adjustments, rather than the adjustments contemplated by clauses (a), (b), and (c) above, shall be made. The Company and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is fixedmade pursuant to this Section 2.3, the Company shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate; and
(iii) mail a brief summary thereof to each holder of Rights.
(g) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable that were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Rights Agreement (Sento Corp), Rights Agreement (Utah Medical Products Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock Common Share dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidate, combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, dividend subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 this subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per shareCommon Share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan, Common Share dividend program and/or any Common Share purchase plan providing for the reinvestment of dividends, receipt of dividends in the form of Common Shares or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar planinterest reinvestment plan or Common Share dividend program, the right to purchase Common Shares is at a price per share Common Share of not less than 90% of the current market price per share Common Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into, exchangeable for or carrying a right to subscribe for or purchase Common Shares) at a price per Common Share (or in the case of a security convertible into, exchangeable for or carrying a right to subscribe for or purchase Common Shares, having a conversion, exchange, exercise, subscription or purchase price including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, consolidation, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any securities of the Corporation (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsection 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with the transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Pembina Pipeline Corp), Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendplan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchasethereof, exercise, conversion or exchange rights, if any); and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this Subsection 2.3(b) occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause Clauses 2.3(b)(i) or (iv2.3(b)(iv), shares of or such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(A) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(B) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Southwestern Resources Corp), Shareholder Rights Plan Agreement (Southwestern Resources Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon on the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend reinvestment program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur occurs after the Separation Time, the securities purchasable upon on exercise of Rights, shall ) will be adjusted in the manner set forth belowfollowing manner. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, changecombination, consolidation change or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
and (ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, changeconsolidation, consolidation change or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon on exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon on exercise of one Right immediately prior to such dividend, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof. To Adjustments pursuant to this subsection will be made successively whenever an event referred to in this subsection occurs.
(b) If the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If Corporation at any time after the Effective Record Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix fixes a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 9095% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal will be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date multiplied by a fraction, fraction (i) the numerator of which the numerator shall will be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and (ii) the denominator of which the denominator shall will be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall be is in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration shall consideration will be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall will be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall will be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to adjustment will be credited for the issue of made successively whenever such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue a record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchaserights, exercise, conversion options or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall will be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the on exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. , options or warrants.
(c) For purposes purpose of this Agreementagreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not will be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the then current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the making of a distribution to all or substantially all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation) of (i) evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), (ii) or rights, options or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to acquire Common Shares) (excluding those referred to in Subsection 2.3(csubsection 3.2(b))) at a price per Common Share (or, if a security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) that is less than 95% of the Market Price per Common Share on the second Trading Day immediately preceding such record date or (iii) other securities of the Corporation, the Exercise Price shall will be adjustedadjusted as follows. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights assets, rights, options or warrants or other securities so to be distributed applicable to the securities purchasable upon on exercise of one Right. Such adjustment shall adjustments will be made successively whenever such a record date is fixed and, if such distribution is not so made, the Exercise Price in respect of the Rights will be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything in this agreement to the contrary, no adjustment of the Exercise Price will be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this subsection are not required to be made will be carried forward and taken into account in any subsequent adjustment. All calculations under section 3.2 will be made to the nearest cent or to the nearest ten-thousandth of a Common Share or other share, as the case may be.
(f) If as a result of an adjustment made pursuant to section 4.1, the holder of any Right thereafter exercised will become entitled to receive any shares other than Common Shares, thereafter the number of such other shares so receivable upon exercise of any Right and the applicable Exercise Price thereof will be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Common Shares contained in this section 3.2, and the provisions of this agreement with respect to the Common Shares will apply on like terms to any such other shares.
(g) All Rights originally issued by the Corporation subsequent to any adjustment made to the Exercise Price will evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Corporation has exercised its election as provided in subsection (i), upon each adjustment of an Exercise Price as a result of the calculations made in subsections (b) and (d), each Right outstanding immediately prior to the making of such adjustment will thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(i) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights will be exercisable for the number of Common Shares for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights will become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation will make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, will be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection, the Corporation, as promptly as is practicable, will cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to section 6.4, the additional Rights to which such holders will be entitled as a result of such adjustment, or, at the option of the Corporation, will cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders will be entitled after such adjustment. Rights Certificates to be so distributed will be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and will be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates previously and thereafter issued may continue to express the relevant Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(k) In any case in which this section requires that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer, until the occurrence of such event, the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation delivers to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this section to the contrary, the Corporation will be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this section, as and to the extent that in its good faith judgment the Board of Directors determines to be advisable in order that any (i) consolidation or subdivision of Common Shares, (ii) issuance wholly for cash of any Common Share or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this section, hereafter made by the Corporation to holders of its Common Shares, will not be taxable to such shareholders.
(m) The Corporation covenants and agrees that, after the Separation Time, except as permitted by section 6.1 or 6.5, it will not take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action would diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this section, the Corporation will promptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(ii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights. The failure to file such certificate or cause such notice to be given as aforesaid, or any defect therein, will not affect the validity of any such adjustment or change.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (TLC Vision Corp), Shareholder Rights Plan Agreement (TLC Vision Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable that were expressed in the initial Rights Certificates issued hereunder.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares, whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. as follows:
(A) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”"EXPANSION FACTOR") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if .
(B) If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior .
(c) Adjustments pursuant to the expiration thereof, the Exercise Price Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares Subsection 2.3(b) occurs.
(or Convertible Securitiesd) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an 3.1 hereof.
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, ;
(i) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(ii) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon on the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedrights or warrants. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment or share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price Market Price per share (determined as provided in such plans) of the Common Shares.
(dg) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of (i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), (ii) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c2.3(f))) or (iii) other securities of the Corporation, the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants or other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(h) Each adjustment made pursuant to Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Subsections 2.3(f) or 2.3(g) above, subject to readjustment to reverse the same if such distribution shall not be made.
(i) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares (other than Common Shares), or rights or warrants to subscribe for or purchase any such shares, or Convertible Securities in respect of any such shares, in a transaction referred to in any of subclauses 2.3(b)(i) to (iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(b), 2.3(f) and 2.3(g) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Subsection 5.4(b), determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(b), 2.3(f) and 2.3(g) above, such adjustments, rather than the adjustments contemplated by Subsections 2.3(b), 2.3(f) and 2.3(g) above, shall be made upon the Board of Directors providing written certification thereof to the Rights Agent pursuant to Subsection 2.3(q).
(j) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(j)) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent.
(k) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(1) Unless the Corporation shall have exercised its election, as provided in Subsection 2.3(m), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(f) and 2.3(g), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Gsi Lumonics Inc), Shareholder Rights Plan Agreement (Gsi Lumonics Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, program or Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiy) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1Subsection 3.1(a) hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.1Subsection 3.1(a) hereof. Adjustments pursuant to Section 2.3 Subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 Subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any stock dividend plan or Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095 % of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Cenovus Energy Inc.), Shareholder Rights Plan Agreement (Cenovus Energy Inc.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Expiration Date:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change split the then-outstanding Common Shares into a greater number of Common Shares;
(iii) combine or consolidate or change the then-outstanding Common Shares into a smaller number of Common Shares or effect a reverse split of the outstanding Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, or in exchange for existing Common SharesShares in a reclassification or recapitalization; then then, and in each such event, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation TimeDate, the securities Preferred Shares purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
: (ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, changecombination, consolidation or issuance would hold thereafter as a result thereof thereof; and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iixi) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, changecombination, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities Preferred Shares purchasable upon exercise of Rights are to be adjustedsplit, subdivided, or combined, or if any dividend (whether of cash or securities) is declared with respect thereto, the securities Preferred Shares purchasable upon exercise of each Right after such adjustment event will be automatically adjusted to be that number of the securities Preferred Shares that a holder of the securities Preferred Shares purchasable upon exercise of one Right (regardless of whether a Right shall then be exercisable) immediately prior to such dividendsplit, subdivision, changecombination, consolidation or issuance dividend would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Record Date and prior to the Expiration Date, the Corporation Company shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this Subsection 2.3(a), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances circumstances, and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall the Company will not consolidate with, merge with or into, or enter into an arrangement with any other Person unless such Person agrees to be made prior to, any adjustment required pursuant to Section 3.1bound by the terms of an amendment effecting such treatment. Adjustments pursuant to Section 2.3 shall be made successively, whenever an In the event referred to in Section 2.3 occurs. If the Corporation Company shall at any time after the Effective Time Record Date and prior to the Separation Time Date issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Shareshare.
(cb) In the event the Corporation shall Company shall, at any time after the Effective Time Record Date and prior to the Separation Time Date, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if or a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares) having a purchaseconversion, exerciseexchange, conversion or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange exchange, or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share Price, and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable exchangeable, or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedCompany. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationCompany; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price Market Price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall Company shall, at any time after the Effective Time Record Date and prior to the Separation Time Date, fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants (excluding those referred to in Subsection 2.3(c2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Company) of the portion of the assets, evidences of indebtedness, rights rights, or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such .
(d) Each adjustment made pursuant to this Section 2.3 shall be made successively whenever such a as of:
(i) the record date for the applicable dividend or distribution in the case of an adjustment made pursuant to subsection (b) or (c) above; and
(ii) the payment or effective date for the applicable dividend, subdivision, change, combination, or issuance in the case of an adjustment made pursuant to subsection (a) above.
(e) In the event the Company shall, at any time after the Record Date and prior to the Separation Date, issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock in a transaction referred to in subsections (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b), and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Company may determine what other adjustments to the Exercise Price, number of Rights, and/or Preferred Shares purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections (a), (b), and (c) above, such adjustments, rather than the adjustments contemplated by subsections (a), (b), and (c) above, shall be made. The Company and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is fixedmade pursuant to this Section 2.3, the Company shall
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate; and
(iii) mail a brief summary thereof to each holder of Rights.
(g) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable that were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Rights Agreement (Fx Energy Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then-outstanding Common Shares into a greater number of Common Shares;
(iiiii) consolidate or change the then-outstanding Common Shares into a smaller number of Common Shares; or, in the event that the Corporation shall at any time after the Separation Time and prior to the Expiration Time:
(iii) declare or pay a distribution on the Voting Shares payable in Voting Shares or Convertible Securities other than pursuant to any Dividend Reinvestment Plan; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows (without duplication with respect to Section 2.1):
(v) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For ; and
(vi) for greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this Subsection 2.3(b) occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSubsections 2.3(b)(iii) or (iv2.3(b)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend agree to amend, supplement or supplement restate this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common ShareShare (as provided in Section 2.1).
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per security (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction of which which:
(i) the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and of which Share; and
(ii) the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue a record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. rights or warrants.
(g) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan or similar share purchase plan, the right to purchase Common Shares is at a price per share security of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dh) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares); or
(ii) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares other than Common Shares (or Convertible Securities in respect of the Voting Shares other than Common Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per security (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c2.3(f)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolutionwhose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the assets, evidences of indebtedness, rights rights, warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(i) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Subsections 2.3(f) or 2.3(h), subject to readjustment to reverse the same if such distribution shall not be made.
(j) In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any securities (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or Convertible Securities in respect of any such securities, in a transaction referred to in any of Subsections 2.3(b), 2.3(f) and 2.3(h), inclusive, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(b), 2.3(f) and 2.3(h) in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Subsection 5.4(b), determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(b), 2.3(f) and 2.3(h), such adjustments, rather than the adjustments contemplated by Subsections 2.3(b), 2.3(f) and 2.3(h), shall be made upon the Board of Directors providing written certification thereof to the Rights Agent as set forth in Subsection 2.3(r). The Corporation and the Rights Agent shall amend, supplement or restate this Agreement as appropriate to provide for such adjustments.
(k) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(k) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this Subsection 2.3 shall be calculated to the nearest cent.
(l) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(m) Unless the Corporation shall have exercised its election, as provided in Subsection 2.3(n), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(f) and 2.3(h), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(n) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(n), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(o) In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(p) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any:
(i) subdivision or consolidation of the Common Shares;
(ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price;
(iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares;
(iv) stock dividends; or
(v) issuance of rights or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to suc
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Bausch Health Companies Inc.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section section 2.3.
(ba) In in the event the Corporation shall at any time after the Effective Time and prior to the Expiration Date:
date of this Agreement: (i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire its Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or program and other than a dividend payable in Common Shares in lieu of a regular periodic annual cash dividend;
dividends; (ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
; (iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
or (iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares or other securities) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
: (ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one (1) Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof; and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will shall have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this clause 2.3(a), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect effect, and the Corporation will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Shareshare.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all of the holders of Common Shares entitling them (for a period expiring within 45 forty-five (45) calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) of less than ninety percent (90% %) of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, the numerator of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share Share, and the denominator of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than ninety per cent (90% %) of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all or substantially all of the holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend annual cash dividends), assets (as defined belowincluding securities, but
(a) or a dividend paid in Common Shares(i) above), or rights, options or warrants (excluding those referred to in Subsection 2.3(c)clause 2.3(b) hereof), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolutionwhose determination shall be described in a statement filed with the Rights Agent) of the portion of the assetscash, assets or evidences of indebtedness, rights or warrants indebtedness so to be distributed or of such rights or warrants applicable to a Common Share and the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent (1%) in the Exercise Price; provided, however, that any adjustments which by reason of this clause 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this clause 2.3(d), any adjustment required by this section 2.3 shall be made no later than the earlier of: (i) three (3) years from the date of the transaction which mandates such adjustment; or
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Haemacure Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Expiration Date:
Time (i) declare or pay a dividend on the Common Shares Stock payable in Common Shares Stock (or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend programstock), Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
Stock, (iii) consolidate or change combine the outstanding Common Shares Stock into a smaller number of shares of Common Shares; or
Stock or (iv) issue any shares of its Common Shares Stock (or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Stock in a reclassification, merger or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the close of business on the Separation TimeDate, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
, (ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of shares of Common Shares Stock (or other capital stock) (the “"Expansion Factor”") that a holder of one share of Common Share Stock immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the shares of Common Shares Stock with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of to such dividend, subdivision, change, consolidation combination or issuance, so that each such share of Common Share Stock (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time close of business on the Record Date and prior to the Expiration Date, Time the Corporation Company shall issue any shares of capital stock other than Common Shares Stock in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this Section 2.4(a), shares of such capital stock shall be treated herein as nearly equivalent to shares of Common Shares Stock as may be practicable and appropriate under the circumstances and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to effect effect, and will not consolidate with, or merge with or into, any other Person unless such Person agrees to be bound by the terms of an amendment effecting, such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation Company shall at any time after the Effective Time close of business on the Record Date and prior to the close of business on the Separation Time Date issue any shares of Common Shares Stock otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such share of Common Share Stock so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Shareshare.
(cb) In the event the Corporation Company shall at any time after the Effective Time close of business on the Record Date and prior to the close of business on the Separation Time Date fix a record date for the issuance making of a distribution to all holders of Common Shares Stock of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares Stock (or Convertible Securities pursuant to which the holder may acquire securities convertible into Common SharesStock) at a price per share of Common Share Stock (or, if a Convertible Security security convertible into Common Stock, having a purchase, exercise, conversion or exchange price, price (including the price required to be paid to purchase such convertible or exchangeable security or right, security) per share) less than 90% of the Market Price per share of Common Share Stock on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of shares of Common Shares Stock outstanding on such record date plus the number of shares of Common Shares that Stock which the aggregate offering price of the total number of shares of Common Shares Stock so to be offered (and/or the aggregate initial conversion, exchange or exercise conversion price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightssecurities)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of shares of Common Shares Stock outstanding on such record date plus the number of additional shares of Common Shares Stock to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value values of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedCompany. For purposes of this Agreement, the granting of the right to purchase shares of Common Shares Stock (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Stock purchase plan providing for the reinvestment of dividends or interest payable on securities of the Common and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationCompany; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest -------- ------- reinvestment plan, the right to purchase shares of Common Shares Stock is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) of the Common SharesStock.
(dc) In the event the Corporation Company shall at any time after the Effective Time close of business on the Record Date and prior to the close of business on the Separation Time Date fix a record date for the making of a distribution to all holders of Common Shares Stock of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common SharesStock) or rights, options rights or warrants (excluding those referred to in Subsection 2.3(cSection 2.4(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Company) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such .
(d) Each adjustment made pursuant to this Section 2.4 shall be made successively whenever such a as of (i) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above and (ii) the payment or effective date for the applicable dividend, subdivision, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above.
(e) In the event the Company shall at any time after the Record Date and prior to the Separation Date issue any shares of capital stock (other than Common Stock), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, if the Company determines that the adjustments contemplated by clauses (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Company may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding clauses (a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by clauses (a), (b) and (c) above, shall be made. The Company and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.4 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is fixedmade pursuant to this Section 2.4, the Company shall (i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment, (ii) promptly file with the Rights Agent and with each transfer agent for the Common Stock a copy of such certificate and (c) mail a brief summary thereof to each holder of Rights.
(g) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Rights Agreement (Hooper Holmes Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.capital
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Descartes Systems Group Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Bakbone Software Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In If the event the Corporation Company shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any new Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation Company shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation Company shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationCompany; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In If the event the Corporation Company shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Company is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) paragraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Company shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Company shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in paragraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subsections (a), (b) and (c) above, shall be made. The Company and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Company subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Company, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Company, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Company shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Company covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Company to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Company shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subsection 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Passport Potash Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Voting Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share. Notwithstanding anything else in this subsection 2.3(a), the Exercise Price shall not be adjusted to give effect to the two-for-one stock split submitted to the Corporation’s shareholders for approval at the 2008 annual general meeting of the Corporation’s shareholders.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common purchase or subscribe for Voting Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Voting Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares ) or rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares having a conversion or rights, options or warrants exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Suncor Energy Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities Shares subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Shares in lieu of a regular periodic cash dividendRegular Periodic Cash Dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, or in exchange for existing Common Shares, except as otherwise provided in this Section 2.3; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities Shares purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:,
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities Shares purchasable upon exercise of Rights are to be adjusted, the securities Shares purchasable upon exercise of each Right after such adjustment will be the securities Shares that a holder of the securities Shares purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or to (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate Certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options options, or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) of the Corporation, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or or warrants) shall not be deemed to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share Common Share (determined as provided in such plans) of the Common Shares. Such adjustment shall be made successively whenever such a record date is fixed and, in the event that such rights, options or warrants are not so issued, the Exercise Price in respect of the Rights shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including without limitation any distribution made in connection with a merger in which the Corporation is the continuing corporation) of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as shall be determined in good faith by the Board of Directors, by Board Resolution) Directors of the portion of the assetsCorporation, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment whose determination shall be made successively whenever such described in a record date is fixed.statement filed with the Rights Agent and shall be binding on the
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (MFC Bancorp LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaseor warrants are not so issued, exerciseor if issued, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into or exchangeable for Common SharesConvertible Securities) actually issued upon the conversion exercise or exchange of such Convertible Securities or upon exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Reinvestmetn Plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) paragraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in paragraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subsections (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subsection 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Transglobe Energy Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Expiration Date:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for, convertible into, or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change split the then-outstanding Common Shares into a greater number of Common Shares;
(iii) combine or consolidate or change the then-outstanding Common Shares into a smaller number of Common Shares or effect a reverse split of the outstanding Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for, convertible into, or giving a right to acquire Common Shares or other capital stock) in respect ofrespecting, in lieu of, or in exchange for existing Common SharesShares in a reclassification or recapitalization; then then, and in each such event, the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation TimeDate, the securities Series A Preferred Shares purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
: (ix) the Exercise Price in effect after such the adjustment shall will be equal to the Exercise Price in effect immediately prior to such the adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such the dividend, subdivision, changecombination, consolidation or issuance would hold thereafter as a result thereof thereof; and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iixi) each Right held prior to such the adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to for which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such for the dividend, subdivision, changecombination, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities Series A Preferred Shares purchasable upon exercise of Rights are to be adjustedsplit, subdivided, or combined, or if any dividend (whether of cash or securities) is declared with respect thereto, the securities Series A Preferred Shares purchasable upon exercise of each Right after such adjustment an event will be automatically adjusted to be that number of the securities Series A Preferred Shares that a holder of the securities Series A Preferred Shares purchasable upon exercise of one Right (regardless of whether a Right shall then be exercisable) immediately prior to such dividendthe split, subdivision, changecombination, consolidation or issuance dividend would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Record Date and prior to the Expiration Date, the Corporation Company shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this subsection 3.02(a), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances circumstances, and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such this treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall the Company will not consolidate with, merge with or into, or enter into an arrangement with any other Person unless that Person agrees to be made prior tobound by the terms of an amendment effecting this treatment.
(b) In the event the Company shall, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time Record Date and prior to the Separation Time Date, issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding subsection, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Sharethe share.
(c) In the event the Corporation shall Company shall, at any time after the Effective Time Record Date and prior to the Separation Time Date, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options or rights or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into, exchangeable for, or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into, exchangeable for, or carrying a right to purchase or subscribe for Common Shares), having a purchaseconversion, exerciseexchange, conversion or exchange price, Exercise Price (including the price required to be paid to purchase such the convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such that record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such the record date plus the number of Common Shares to be offered that the aggregate offering price of the total number of Common Shares so to be offered (and/or or the aggregate initial conversion, exchange exchange, or exercise price Exercise Price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such the convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share purchase, and of which the denominator shall be the number of Common Shares outstanding on such the record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable exchangeable, or exercisable). In case such When part or all of a subscription price may be paid by delivery of consideration part or all of which shall be in a form consideration other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration that consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to to: (i) any Dividend Reinvestment Plan dividend or interest reinvestment plan; (ii) any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company; (iii) the investment of periodic optional payments; and (iv) employee benefit or similar plans (so long as such the right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationCompany; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price Market Price per share (determined as provided in such the plans) of the Common Shares.
(d) In the event the Corporation Company shall at any time after the Effective Time Record Date and prior to the Separation Time Date fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubsection 3.02(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such the record date will equal the Exercise Price in effect immediately prior to such the record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such .
(e) Each adjustment made pursuant to this section 3.02 shall be made successively whenever such a as of:
(i) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection (c) or (d) above; and
(ii) the payment or effective date for the applicable dividend, subdivision, change, combination, or issuance in the case of an adjustment made pursuant to subsection (a) above.
(f) In the event the Company shall at any time after the Record Date and prior to the Separation Date issue any shares of capital stock (other than Common Shares), rights or warrants to subscribe for or purchase any capital stock, or securities convertible into or exchangeable for any capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by clauses (a), (c) and (d) above in connection with the transaction will not appropriately protect the interests of the holders of Rights, the Company may determine what other adjustments to the Exercise Price, number of Rights, and/or Series A Preferred Shares purchasable upon exercise of the Rights would be appropriate and, notwithstanding clauses (a), (c) and (d) above, such adjustments, rather than the adjustments contemplated by clauses (a), (c) and (d) above, shall be made. The Company and the Rights Agent shall amend this Agreement as appropriate to provide for these adjustments.
(g) Each adjustment to the Exercise Price made pursuant to this section 3.02 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is fixedmade pursuant to this section 3.02, the Company shall:
(i) promptly prepare a certificate setting forth the adjustment and a brief statement of the facts accounting for the adjustment;
(ii) promptly file a copy of such certificate with the Rights Agent and with each transfer agent for the Common Shares; and
(iii) mail a brief summary thereof to each holder of Rights.
(h) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates issued may continue to express the securities purchasable that were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Rights Agreement (Fx Energy Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubsection 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each each, such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) of the Corporation whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares ) or rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or rights, options or warrants exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(cSection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such dividend or distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares ), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with Section 5.4(b) and (c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Sierra Wireless Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Time and prior to the Expiration Date:Time:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;program;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares; except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; andand
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction:
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would be in effect based upon the number of Common Shares (or Convertible Securities) actually issued upon the conversion, exercise or exchange of such Convertible Securities or upon exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) subparagraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubparagraph 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subparagraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subparagraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subparagraph 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subparagraph 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in subparagraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subparagraphs (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subparagraphs (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subparagraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any
(i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subparagraph 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares, whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. as follows:
(A) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “"Expansion Factor”") that a ---------------- holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if .
(B) If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior .
(c) Adjustments pursuant to the expiration thereof, the Exercise Price Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares Subsection 2.3(b) occurs.
(or Convertible Securitiesd) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an 3.1 hereof.
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, ;
(i) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(ii) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon on the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedrights or warrants. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment or share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price Market Price per share (determined as provided in such plans) of the Common Shares.
(dg) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of (i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), (ii) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c2.3(f))) or (iii) other securities of the Corporation, the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants or other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(h) Each adjustment made pursuant to Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Subsections 2.3(f) or 2.3(g) above, subject to readjustment to reverse the same if such distribution shall not be made.
(i) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares (other than Common Shares), or rights or warrants to subscribe for or purchase any such shares, or Convertible Securities in respect of any such shares, in a transaction referred to in any of subclauses 2.3(b)(i) to (iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(b), 2.3(f) and 2.3(g) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Subsection 5.4(b), determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(b), 2.3(f) and 2.3(g) above, such adjustments, rather than the adjustments contemplated by Subsections 2.3(b), 2.3(f) and 2.3(g) above, shall be made upon the Board of Directors providing written certification thereof to the Rights Agent pursuant to Subsection 2.3(q).
(j) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(j)) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent.
(k) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(l) Unless the Corporation shall have exercised its election, as provided in Subsection 2.3(m), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(f) and 2.3(g), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(m) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(m), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(n) In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(o) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any (i) subdivision or consolidation of the Common Shares, (ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price, (iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares, (iv) stock dividends, or (v) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(p) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to represent the securities so purchasable which were represented in the initial Rights Certificates issued hereunder.
(q) Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 or Article 3.
(ba) In the event the Corporation Company shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. :
(A) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (for the “purpose of this Agreement, "Expansion Factor”" shall mean the number of Common Shares (or other capital stock) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if anydivided by one Common Share); and
(ii) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time and prior to the Expiration Date:
date of this Agreement (i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire its Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or program and other than a dividend payable in Common Shares in lieu of a regular periodic annual cash dividend;
dividends, (ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
, (iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
Shares or (iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares or other securities) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
, (ix) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this clause 2.3(a), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect effect, and the Corporation will not consolidate with, merge with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting, such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Shareshare.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all of the holders of Common Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) of less than 9080% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, the numerator of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share Share, and the denominator of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 9080% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all or substantially all of the holders of Common Shares (including any such distribution made in connection with a merger or consolidation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend annual cash dividends), assets (as defined below) or including securities, but except a dividend paid described in Common Sharessubclause 2.3(a)(i) above), or rights, options or warrants (excluding those referred to in Subsection 2.3(c)clause 2.3(b) hereof), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date less by a fraction, the numerator of which shall be the Market Price per Common Share on such record date, Less the fair market value (as determined in good faith by the Board of Directors, by Board Resolutionwhose determination shall be described in a statement filed with the Rights Agent) of the portion of the assetscash, assets or evidences of indebtedness, rights or warrants indebtedness so to be distributed or of such rights or warrants applicable to a Common Share and the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least ten (10%) percent in the Exercise Price; provided, however, that any adjustments which by reason of this clause 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest tenth of a cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this clause 2.3(d), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment or (ii) the Termination Date.
(e) In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, then, unless the Board of Directors acting in good faith determines that the adjustments contemplated by clauses (a). (b) and (c) above in connection with such transaction will appropriately protect the interests of the holders of Rights, the Corporation will determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding clauses (a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by clauses (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(f) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(g) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(h) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(i) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors shall determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(j) In any case in which this Section 2.3 shall require any adjustment, the Corporation shall deliver to the Rights Agent a certificate duly executed by an officer of the Corporation describing such adjustment, in addition to any other statement or document required by this Section 2.3.
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Surge Components Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation Fund shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend distribution on the Common Shares Trust Units payable in Common Shares Trust Units (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Trust Units or other securities of the Corporation (or Convertible SecuritiesFund) other than pursuant to any optional stock dividend Trust Unit distribution program, Dividend Reinvestment Plan distribution reinvestment plan or dividend a distribution payable in Common Shares Trust Units in lieu of a regular periodic cash dividenddistribution;
(ii) subdivide or change the then outstanding Common Shares Trust Units into a greater number of Common SharesTrust Units;
(iii) consolidate consolidate, combine or change the then outstanding Common Shares Trust Units into a smaller number of Common SharesTrust Units; or
(iv) issue any Common Shares Trust Units (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Trust Units or other securities of the Corporation (or Convertible SecuritiesFund) in respect of, in lieu of, of or in exchange for existing Common Shares; then Trust Units in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares Trust Units (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share Trust Unit immediately prior to such dividenddistribution, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares Trust Units with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares Trust Units issued or issuable in respect of such dividenddistribution, subdivision, change, consolidation combination or issuance, so that each such Common Share Trust Unit (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, distribution subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation Fund shall issue any shares of capital stock securities other than Common Shares Trust Units in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares Trust Units as may be practicable and appropriate under the circumstances and the Corporation Fund and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 this subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 2.3(a) occurs. If In the Corporation event the Fund shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares Trust Units otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share Trust Unit so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common ShareTrust Unit.
(cb) In the event the Corporation Fund shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares Trust Units of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares Trust Units (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Sharespurchase or subscribe for Trust Units) at a price per Common Share Trust Unit (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Trust Units, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per shareTrust Unit)) less than 90% of the Market Price per Common Share Trust Unit on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares Trust Units outstanding on such record date plus the number of Common Shares that Trust Units which the aggregate offering price of the total number of Common Shares Trust Units so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares Trust Units outstanding on such record date plus the number of additional Common Shares Trust Units to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) Trust Units pursuant to any Dividend Reinvestment Plan distribution or interest reinvestment plan and/or any Trust Unit purchase plan providing for the reinvestment of distributions or interest payable on securities of the Fund and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the CorporationFund; provided, however, that, that in the case of any Dividend Reinvestment Plan distribution or similar interest reinvestment plan, the right to purchase Common Shares Trust Units is at a price per share Trust Unit of not less than 90% of the current market price per share Trust Unit (determined as provided in such plans) of the Common SharesTrust Units.
(dc) In the event the Corporation Fund shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares Trust Units of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined belowregular periodic cash distribution or a distribution paid in Trust Units) or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Trust Units (or securities convertible into, exchangeable for or carrying a right to subscribe for or purchase Trust Units) at a price per Trust Unit (or in the case of a security convertible into, exchangeable for or carrying a right to subscribe for or purchase Trust Units, having a conversion, exchange, exercise, subscription or purchase price) less than 90% of the Market Price per Trust Unit on such record date, (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable distribution, subdivision, consolidation, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Fund shall at any time after the Amendment Date and prior to the Expiration Time issue any securities of the Fund (other than Trust Units), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Fund shall take any other action (other than the issue of Trust Units) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Fund may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Fund, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Fund and the Rights Agent shall amend this Agreement in accordance with subsection 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Fund shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with the transfer agent for the Trust Units a copy of such certificate and mail a brief summary thereof to each holder of Rights.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Unitholder Rights Plan Agreement (Enerplus Resources Fund)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event a. If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) i. declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) . subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate . combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) . issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(1) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(ia) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iib) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(2) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
b. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 60 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
i. the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be so offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
ii. the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event c. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) or rightsparagraph 2.3(a)(i)), options assets, rights or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
i. the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
ii. the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
d. Each adjustment made pursuant to this Section 2.3 shall be made as of:
i. the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
ii. the record date for the applicable distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
e. Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of: (i) three years from the date of the transaction which mandates such adjustments; and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
i. promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
ii. promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights.
f. If the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in paragraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections (a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by subsections (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
g. Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein
h. Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates issued before and after such adjustment or change may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
i. In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
j. Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
k. The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.3, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
l. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
m. If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares other than in a transaction referred to in subsection 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Birch Mountain Resources LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time date of this Agreement and prior to the Expiration Date:
Time: (i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
; (ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
; (iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
or (iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof thereof, and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.. 17 (d) Each adjustment made pursuant to this Section 2.3 shall be made as of: (i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and (ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above,
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Algonquin Power & Utilities Corp.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities Shares subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event that the Corporation shall at any time after the Effective Amendment Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment program or a dividend payable in Common Voting Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for the existing Common SharesShares in a reclassification, amalgamation, merger, statutory arrangement or consolidation; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and the number of Rights outstanding are to be adjusted:
adjusted (iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon the exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon the exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter or as a result thereof. To the extent that such rights of purchaseIf, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Amendment Time and prior to the Expiration DateTime, the Corporation shall issue any shares of Shares or capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 3.2(a)(i) or (iv), such shares of such or capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which that would require an adjustment under both this Section 2.3 section 3.2 and Section 3.1section 4.1 hereof, the adjustment provided for in this Section 2.3 section 3.2 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1section 4.1 hereof. Adjustments Such adjustment pursuant to Section 2.3 this subsection 3.2(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 3.2(a) occurs. If In the event the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common purchase or subscribe for Voting Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Voting Shares, having a purchaseconversion, exerciseexchange, conversion or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementsubsection (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or director, officer or employee benefit or similar plans or stock option plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event that the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 3.2(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this section 3.2 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event that the Corporation shall at any time after the Amendment Time and prior to the Expiration Time issue any Shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) 2.3.1 The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) 2.3.2 In the event that the Corporation Company shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(ia) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation Company (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(iib) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iiic) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or;
(ivd) issue any Common Shares or other capital stock of the Corporation Company (or Convertible Securities) in respect of, in lieu of, or in exchange for existing Common SharesShares whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(i) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); , and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will shall be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and each of the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will shall have exactly one Right associated with it. For greater certainty, ; and
(ii) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If .
2.3.3 If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation Company shall issue any shares of its capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSections 2.3.2(a) or (iv2.3.2(d), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation Company and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. .
2.3.4 If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments made pursuant to this Section 2.3 shall be made successively, whenever an event referred to in this Section 2.3 occurs. If .
2.3.5 In the Corporation event the Company shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)Section 2.3.2, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(ca) In the event the Corporation shall Company shall, at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of a Convertible Security Security, having a purchase, an exercise, conversion or exchange priceprice per Common Share, including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversionexercise, conversion or exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(ii) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertibleexercisable, exchangeable convertible or exercisableexchangeable). .
(b) In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchaserights, exercise, conversion options or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities exercisable, convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. , options or warrants.
(c) Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend reinvestment plan or any Common Share purchase and/or option plan providing for the reinvestment of dividends or interest payable on securities of the Company and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Company) shall not be deemed to constitute an issue of rights rights, options or warrants by the CorporationCompany; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend reinvestment or similar Common Share purchase or option plan, the right to purchase Common Shares is at a price per share Share of not less than 90% of the current market price per share Common Share (determined as provided in such plans) of the Common Shares.
(d) 2.3.7 In the event the Corporation Company shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(a) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares); or
(b) or rights, options or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) (excluding those rights, options or warrants referred to in Subsection 2.3(c)Section 2.3.6), at a price per Common Share (or, in the Exercise case of a Convertible Security in respect of Common Shares, having an exercise, conversion or exchange price per Common Share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price shall be adjusted. The per Common Share on such record date, the Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, options, warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
2.3.8 Each adjustment made pursuant to this Section 2.3 shall be made as of:
(a) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Section 2.3.2; and
(b) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Section 2.3.6 or 2.3.7, subject to readjustment to reverse the same if such distribution shall not be made.
2.3.9 In the event the Company shall at any time after the Record Time and prior to the Expiration Time issue any shares (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such securities, or Convertible Securities in respect of any such securities, in a transaction referred to in any of Sections 2.3.2(a) to 2.3.2(d), inclusive, if the Board of Directors acting in good faith determines that the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7 in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board of Directors may from time to time, determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Sections 2.3.2,
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind nature of securities shares subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide subdivides or change changes the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidates or change changes the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, or in exchange for existing Common Shares; , then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjustedas follows:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Adjustment Factor”) that a holder of one (1) Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Adjustment Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one (1) Right associated with it. For greater certainty.
(b) If the Corporation, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If at any time after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix fixes a record date for the issuance making of a distribution to substantially all of the holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 forty five (45) calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if in the case of a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per share)) less than ninety percent (90% %) of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be so offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall will be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect directors of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common SharesCorporation. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans dividend reinvestment plan and/or any share purchase plan (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend reinvestment plan or similar share purchase plan, the right to purchase Common Shares is at a price per share of not less than ninety percent (90% %) of the current market price Market Price per share (determined as provided in accordance with such plans) of the Common Sharesshares.
(dc) In If the event the Corporation shall Corporation, at any time after the Effective Record Time and prior to the Separation Time fix Expiration Time, fixes a record date for the making of a distribution to substantially all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares but including any dividend payable in securities other than Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares) at a price per Common Share (or, in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right)) less than ninety percent (90%) of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board board of Directorsdirectors of the Corporation subject to the prior written consent of the Exchange, by Board Resolutionif applicable) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to a Common Share.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to subsection 2.3(a); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsections 2.3(b) or (c).
(e) If the Corporation shall at any time after the Record Time and prior to the Expiration Time, issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clauses 2.3(a)(i) or (iv), if the board of directors of the Corporation, acting in good faith, determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Corporation may, subject to the prior written consent of the Exchange, if applicable, determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c), such adjustments, rather than the adjustments contemplated by subsections 2.3(a), (b) and (c), shall be made. The Corporation and the Rights Agent shall, subject to the prior written consent of the Exchange, if applicable, amend this Agreement as appropriate to provide for such adjustments.
(f) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments made pursuant to this Section 2.3 shall be made to the nearest cent or to the nearest one ten-thousandth of a Common Share or a Right, as the case may be.
(g) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Corporation shall have exercised its election, as provided in subsection 2.3(i) below, upon each adjustment of an Exercise Price as a result of the calculations made in subsections 2.3(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to this adjustment, by (B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(i) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(ii) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least ten (10) calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 2.3(i), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation but subject to the prior written consent of the Exchange, if applicable, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Notwithstanding any adjustment or change in the securities purchasable upon exercise of one Right. Such the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(k) In any case in which this Section 2.3 shall require that an adjustment shall in an Exercise Price be made successively whenever such effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder a due b▇▇▇ or other appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the board of directors of the Corporation shall determine to be advisable in order that any (i) subdivision or consolidation of the Common Shares, (ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price, (iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, subject to applicable taxation laws, shall not be taxable to such shareholders.
(m) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1 or 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is fixedtaken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this Section 2.3, the Corporation shall promptly:
(i) if the Common Shares are listed on the Exchange, file notice thereof with the Exchange unless such notice was previously filed in respect of an adjustment for which the prior written consent of the Exchange is required before such adjustment can be made;
(ii) file with the Rights Agent and with the transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(iii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights. Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Api Electronics Group Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon on the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or reinvestment program and other than a dividend payable in Common Shares (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares) in lieu of (and having a regular periodic cash dividendvalue no greater than) a dividend paid in the ordinary course;
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur occurs after the Separation Time, the securities purchasable upon on exercise of Rights, shall ) will be adjusted in the manner set forth belowfollowing manner. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, changecombination, consolidation change or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
and (ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, changeconsolidation, consolidation change or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon on exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon on exercise of one Right immediately prior to such dividend, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof. To Adjustments pursuant to this subsection will be made successively whenever an event referred to in this subsection occurs.
(b) If the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If Corporation at any time after the Effective Record Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix fixes a record date for the issuance to all holders of Common Shares of rights, options or warrants to all or substantially all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 9095% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal will be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date multiplied by a fraction, fraction (i) the numerator of which the numerator shall will be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and (ii) the denominator of which the denominator shall will be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall be is in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration shall consideration will be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall will be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall will be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to adjustment will be credited for the issue of made successively whenever such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue a record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchaserights, exercise, conversion options or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall will be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the on exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. , options or warrants.
(c) For purposes purpose of this Agreementagreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not will be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the then current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the making of a distribution to all or substantially all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation) of (i) evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), (ii) or rights, options or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to acquire Common Shares) (excluding those referred to in Subsection 2.3(csubsection 3.2(b))) at a price per Common Share (or, if a security convertible into or exchangeable for or carrying a right to acquire Common Shares, having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) that is less than 95% of the Market Price per Common Share on the second Trading Day immediately preceding such record date or (iii) other securities of the Corporation, the Exercise Price shall will be adjustedadjusted as follows. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights assets, rights, options or warrants or other securities so to be distributed applicable to the securities purchasable upon on exercise of one Right. Such adjustment shall adjustments will be made successively whenever such a record date is fixed and, if such distribution is not so made, the Exercise Price in respect of the Rights will be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything in this agreement to the contrary, no adjustment of the Exercise Price will be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this subsection are not required to be made will be carried forward and taken into account in any subsequent adjustment. All calculations under section 3.2 will be made to the nearest cent or to the nearest ten-thousandth of a Common Share or other share, as the case may be.
(f) If as a result of an adjustment made pursuant to section 4.1, the holder of any Right thereafter exercised will become entitled to receive any shares other than Common Shares, thereafter the number of such other shares so receivable upon exercise of any Right and the applicable Exercise Price thereof will be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Common Shares contained in this section 3.2, and the provisions of this agreement with respect to the Common Shares will apply on like terms to any such other shares.
(g) All Rights originally issued by the Corporation subsequent to any adjustment made to the Exercise Price will evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Corporation has exercised its election as provided in subsection (i), upon each adjustment of an Exercise Price as a result of the calculations made in subsections (b) and (d), each Right outstanding immediately prior to the making of such adjustment will thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(i) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights will be exercisable for the number of Common Shares for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights will become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation will make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, will be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection, the Corporation, as promptly as is practicable, will cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to section 6.4, the additional Rights to which such holders will be entitled as a result of such adjustment, or, at the option of the Corporation, will cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders will be entitled after such adjustment. Rights Certificates to be so distributed will be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and will be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates previously and thereafter issued may continue to express the relevant Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(k) In any case in which this section requires that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer, until the occurrence of such event, the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation delivers to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this section to the contrary, the Corporation will be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this section, as and to the extent that in its good faith judgment the Board of Directors determines to be advisable in order that any (i) consolidation or subdivision of Common Shares, (ii) issuance wholly for cash of any Common Share or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this section, hereafter made by the Corporation to holders of its Common Shares, will not be taxable to such shareholders.
(m) The Corporation covenants and agrees that, after the Separation Time, except as permitted by section 6.1 or 6.5, it will not take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action would diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this section, the Corporation will promptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares a certificate specifying the particulars of such adjustment or change; and
(ii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights. The failure to file such certificate or cause such notice to be given as aforesaid, or any defect therein, will not affect the validity of any such adjustment or change.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Poet Technologies Inc.)
Adjustments to Exercise Price; Number of Rights.
(a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend programplan, Dividend Reinvestment Plan dividend reinvestment plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendRegular Periodic Cash Dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(A) if the Exercise Price and number of Rights outstanding are to be adjustedadjusted such that:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exerciseexchange, conversion or exchange acquisition rights, if any); , and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this Subsection 2.3(b) occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause Subsections 2.3(b)(i) or (iv2.3(b)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges and preferences as Common Shares ("Equivalent Common Shares")) or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) Shares or Equivalent Common Shares at a price per Common Share or per Equivalent Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(A) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares and/or Equivalent Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(B) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares and/or Equivalent Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible Securities) in respect of, in lieu of, or in exchange for existing Common Shares; then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Golden Star Resources LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any Dividend Reinvestment Plan, optional stock dividend program, Dividend Reinvestment Plan program or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv2.3(a)(iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, in and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common SharesSecurities) at a price per Common Share (or, if a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, Convertible Security per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights rights, options or warrants) shall not be deemed to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid in Common Shares) or rightsConvertible Securities at a price per Common Share (or, options in the case of a Convertible Security in respect of Common Shares having a conversion or warrants exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assetsassess, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph 2.3(a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph 2.3(b) or 2.3(c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(e), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration Date:Time:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;program;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares; except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction:
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. , and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would be in effect based upon the number of Common Shares (or Convertible Securities) actually issued upon the conversion, exercise or exchange of such Convertible Securities or upon exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) subparagraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubparagraph 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subparagraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subparagraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subparagraph 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subparagraph 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in subparagraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subparagraphs (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subparagraphs (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subparagraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subparagraph 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation Company shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(iv) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (for the “purpose of this Agreement, "Expansion Factor”" shall mean the number of Common Shares (or other capital stock) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if anydivided by one Common Share); and
(ii) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation Riverside shall at any time after the Effective date of the Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesRiverside) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesRiverside) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted as of the payment or effective date in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and subsection 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under subsection 3.1(a). If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation Riverside shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation Riverside and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation Riverside shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation Riverside shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any a Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the CorporationRiverside; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation Riverside shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid referred to in Section 2.3(a)(i), but including any dividend payable in securities other than Common Shares) ), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c)2.3(b) hereof), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Riverside Forest Products Marketing LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSection 2.3(a)(i) or (iv2.3(a)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaseor warrants are not so issued, exerciseor if issued, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into or exchangeable for Common SharesConvertible Securities) actually issued upon the conversion exercise or exchange of such Convertible Securities or upon exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Transglobe Energy Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidate, combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.Section
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) other Securities otherwise than pursuant to any optional stock share dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect of, in lieu of, or in exchange for for, existing Common Shares in a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and subsection 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under subsection 3.1(a) . If the Exercise Price and number of Rights outstanding are to be adjusted:
(ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will shall be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Voting Share (or other capital stock) will Convertible Security shall have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold immediately thereafter as a result thereof. To the extent that any such rights of purchase, exerciseexchange, conversion or exchange acquisition are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on upon the number of Common Shares (or Convertible Securities) Securities actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares Shares of its authorized capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (ivthe first sentence of this subsection 2.3(a), shares of such capital stock Shares shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (NexGen Energy Ltd.)
Adjustments to Exercise Price; Number of Rights. (a) 2.3.1 The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) 2.3.2 In the event that the Corporation Company shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(ia) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(iib) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iiic) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(ivd) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(i) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Company) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Company issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Company) will have exactly one Right associated with it. For greater certainty, ; and (ii) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Section 2.3.2 shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If this Section 2.3.2 occurs.
2.3.3 If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation Company shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSections 2.3.2(a) or (iv2.3.2(d), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation Company and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. .
2.3.4 If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
2.3.5 In the event referred to in Section 2.3 occurs. If the Corporation Company shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)Section 2.3.2, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(ca) In the event the Corporation shall Company shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(ii) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). .
(b) In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. rights or warrants.
(c) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company or the investment of periodic optional payments or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Company) shall not be deemed to constitute an issue of rights or warrants by the CorporationCompany; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment or share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) 2.3.7 In the event the Corporation Company shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(a) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares); or
(b) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c)Section 2.3.6), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
2.3.8 Each adjustment made pursuant to this Section 2.3 shall be made as of:
(a) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to Section 2.3.2; and
(b) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Section 2.3.6 or 2.3.7, subject to readjustment to reverse the same if such distribution shall not be made.
2.3.9 In the event the Company shall at any time after the Record Time and prior to the Expiration Time issue any shares (other than Common Shares), or rights or warrants to subscribe for or purchase any such shares, or Convertible Securities in respect of any such shares, in a transaction referred to in any of Sections 2.3.2(a) to 2.3.2(d), inclusive, if the Board of Directors acting in good faith determines that the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7 in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Section 5.4.2, determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Sections 2.3.2, 2.3.6 and 2.3.7, such adjustments, rather than the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7, shall be made upon the Board of Directors providing written certification thereof to the Rights Agent as set forth in Section 2.3.17. The Company and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
2.3.10 Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this Section 2.3.10 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent.
2.3.11 All Rights originally issued by the Company subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
2.3.12 Unless the Company shall have exercised its election, as provided in Section 2.3.13, upon each adjustment of an Exercise Price as a result of the calculations made in Sections 2.3.6 and 2.3.7, each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(a) multiplying:
(i) the number of Common Shares covered by a Right immediately prior to such adjustment; by
(ii) the Exercise Price in effect immediately prior to such adjustment; and
(b) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
2.3.13 The Company may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Company shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 2.3.13, the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Company, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
2.3.14 In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Company, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Company, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
2.3.15 Notwithstanding anything in this Section 2.3 to the contrary, the Company shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any:
(a) subdivision or consolidation of the Common Shares;
(b) issuance wholly for cash of any Common Shares at less than the applicable Market Price;
(c) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares;
(d) stock dividends; or
(e) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company to holders of its Common Shares, shall not be taxable to such shareholders.
2.3.16 Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofor and thereafter issued may continue to represent the securities so purchasable which were represented in the initial Rights Certificates issued hereunder.
2.3.17 Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Company shall:
(a) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(b) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or to c
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Keegan Resources Inc.)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stockcapital
(a) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable that were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Common Shares or other securities subject to purchase upon on the exercise of each Right Right, and the number of Rights outstanding outstanding, are subject to adjustment from time to time as provided in this Section 2.3section and in Article 4.
(b) In If the event the Corporation shall Company, at any time after the Effective Record Time and prior to before the Expiration Date:Expiry Time,
(i) declare declares or pay pays a dividend on the Common Shares Shares, payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCompany) other than pursuant to any optional stock under a dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide subdivides or change changes the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combines or change changes the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) in respect ofregarding, in lieu of, or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur for the Rights occurs after the Separation Time, the securities purchasable upon on exercise of Rights, shall will be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjustedas follows:
(iv) the Exercise Price in effect after such the adjustment shall will be equal to the Exercise Price in effect immediately prior to such before the adjustment divided by the number of Common Shares (or other capital stocksecurities of the Company) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such before the dividend, subdivision, change, consolidation consolidation, or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)afterward; and
(iivi) each Right held prior to such before the adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which that the original Rights were associated with (if they remain outstanding) and the Common Shares securities of the Company issued or issuable in respect of such the dividend, subdivision, change, consolidation consolidation, or issuance, so that each such Common Share (or other capital stocksecurity of the Company) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon on exercise of Rights are to be adjusted, the securities purchasable upon on exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon on exercise of one Right immediately prior to such before the dividend, subdivision, change, consolidation consolidation, or issuance would hold thereafter as a result thereof. To of the extent that such rights of purchasedividend, exercisesubdivision, conversion change, consolidation, or exchange are not exercised prior issuance.
(c) Adjustments under paragraph 3.2(b) will be made successively, whenever an event referred to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares paragraph 3.2(b) occurs.
(or Convertible Securitiesd) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 section and Section 3.1section 4.1, the adjustment provided for in this Section 2.3 shall section will be in addition to, and shall will be made prior tobefore, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successivelyunder section 4.1.
(e) If, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to before the Separation Time issue Time, the Company issues any Common Shares otherwise other than in a transaction referred to described in this Subsection 2.3(bparagraph 3.2(b), each such Common Share so issued shall will automatically have one new Right associated with it, which and that Right shall will be evidenced by the certificate representing such associated the Common Share.
(cf) In If the event the Corporation shall Company, at any time after the Effective Record Time and prior to before the Separation Time fix Expiry Time, fixes a record date for the issuance issuing rights, options, or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such the record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase Common Shares, having a purchaseconversion, exerciseexchange, conversion or exchange exercise price, including the price required to be paid to purchase such the convertible or exchangeable security or right, right per share) less than 9095% of the Market Price per Common Share on such the record date, the Exercise Price shall be adjusted in after the manner set forth below. The Exercise Price in effect after such record date shall equal will be the Exercise Price in effect immediately prior to such before the record date multiplied by a the following fraction, of which :
(i) the numerator shall will be the number of Common Shares outstanding on such the record date plus the number of Common Shares that could be purchased at the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share on the record date with the actual total amount the Company would receive if all the Common Shares offered are purchased (or, in the case of securities convertible into or exchangeable for, or carrying a right to purchase Common Shares, that the Company may receive if all the securities are purchased and of which are subsequently converted, exchanged or exercised at the initial conversion, exchange, or exercise price); and
(ii) the denominator shall will be the number of Common Shares outstanding on such the record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable exchangeable, or exercisable). In case such If the subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration shall the consideration will be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall Directors. The adjustment will be described in made successively whenever a resolution (and an accompanying set of written instructions to record date is fixed. If the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directorsrights, the present cash value of the sum of the cash considerationoptions, or warrants are not issued or, if anyissued, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereofbefore their expiry, the Exercise Price shall will be readjusted to the Exercise Price which that would then be in effect if the record date had not been fixed or to the Exercise Price that would be in effect based on the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually issued upon on the exercise of such the rights. Such adjustment shall be made successively whenever such a record date is fixed, options, or warrants, as the case may be. For the purposes of this Agreementagreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to under a dividend or interest reinvestment plan or any Dividend Reinvestment Plan share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company or the investment of periodic optional payments or employee benefit or similar plans plan (so long as such the right to purchase is in no case not evidenced by the delivery of or rights or warrantswarrants by the Company) shall not will be deemed not to constitute an issue of rights rights, options, or warrants by the CorporationCompany; provided, however, that, that in the case of any Dividend Reinvestment Plan a dividend or similar interest reinvestment or share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such those plans) of the Common Shares.
(dg) In If the event the Corporation shall Company, at any time after the Effective Record Time and prior to before the Separation Time fix Expiry Time, fixes a record date for the making of a distribution to all holders of Common Shares of of
(i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares);
(ii) or rights, options or warrants entitling them to subscribe for or purchase Common Shares (excluding or securities convertible into or exchangeable for or carrying a right to acquire Common Shares) (other than those referred to in Subsection 2.3(cparagraph 3.2(c))) at a price per Common Share (or, if a security convertible into or exchangeable for or carrying a right to purchase Common Shares, having a conversion, exchange, or exercise price, including the price required to be paid to purchase the convertible or exchangeable security or right per share) less than 95% of the Market Price per Common Share on the record date; or
(iii) other securities of the Company, the Exercise Price shall be adjusted. The Exercise Price in effect after such the record date will equal be the Exercise Price in effect immediately prior to such before the record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights assets, rights, options or warrants so or other securities to be distributed applicable to the securities purchasable upon on exercise of one Right. Such adjustment shall These adjustments will be made successively whenever such a record date is fixed and, if a distribution is not made, the Exercise Price will be adjusted to the Exercise Price that would have been in effect if the record date had not been fixed.
(h) Despite anything in this agreement, an adjustment to the Exercise Price is only required if the adjustment would require an increase or decrease of at least 1% in the Exercise Price. Any adjustments that by reason of this paragraph are not required to be made will be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made under this section will be calculated to the nearest cent.
(i) Each Right originally issued by the Company after any adjustment made to the Exercise Price under this agreement will evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time under this agreement on exercise of a Right immediately before the issue, all subject to further adjustment as provided in this agreement.
(j) Unless the Company has exercised its election, as provided in paragraph 3.2(k), on each adjustment of an Exercise Price as a result of the calculations in paragraphs 3.2(f) and (g), each Right outstanding immediately before making the adjustment will afterward evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares obtained by
(i) multiplying the number of Common Shares covered by a Right immediately before the adjustment by the Exercise Price in effect immediately before the adjustment; and
(ii) dividing the product of (i) by the Exercise Price in effect immediately after the adjustment.
(k) The Company may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights instead of adjusting the number of Common Shares purchasable on exercise of a Right. Each Right outstanding after adjusting the number of Rights will be exercisable for the number of Common Shares for which a Right was exercisable immediately before the adjustment. Each Right held of record before the adjustment of the number of Rights will become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately before adjustment by the relevant Exercise Price in effect immediately after adjusting. The Company will make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. The record date may be the date on which the relevant Exercise Price is adjusted or any day after that, but, if the Rights Certificates have been issued, will be at least 10 calendar days after the public announcement. If Rights Certificates have been issued, on each adjustment of the number of rights under this paragraph, the Company will, as promptly as practicable, either
(i) cause additional Rights Certificates to be distributed to the holders of record of Rights Certificates that evidence the additional Rights the holder has become entitled to as a result of the adjustment; or
(ii) at the option of the Company, cause replacement Rights Certificates to be issued to the holders of Rights Certificates on surrender of the original Rights Certificate, if instructed by the Company, evidencing all of the Rights the holder is entitled to as a result of the adjustment.
(l) If this section requires an adjustment in an Exercise Price effective as of a record date for a specified event, and a person has exercised a Right after the record date, the Company may defer issuing to the holder the additional Common Shares and other securities of the Company, if any, issuable on exercise as a result of the adjustment until after the event occurs. The Company will deliver to the holder an appropriate instrument evidencing the holder’s right to receive the additional Common Share or other securities upon the event occurs that requires the adjustment.
(m) Despite anything to the contrary in this section, the Company will be entitled to make any adjustments in the Exercise Price, in addition to those adjustments expressly required by this section, as and to the extent that in its good faith judgment the Board of Directors determines to be advisable so that any
(i) consolidation or subdivision of the Common Shares;
(ii) issuance wholly for cash of any Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares;
(iii) stock dividends; or
(iv) issuance of rights, options, or warrants referred to in this section, made by the Company to holders of its Common Shares after the date of this agreement will not be taxable to the shareholders.
(n) Irrespective of any adjustment or change in an Exercise Price or the number of Common Shares issuable on the exercise of the Rights, the Rights Certificates may continue to express the Exercise Price per Common Share and the number of Common Shares that was expressed in the initial Rights Certificates issued under this agreement.
(o) Whenever an adjustment to the Exercise Price or a change in the securities purchasable on exercise of the Rights is made under this section, the Company will promptly
(i) prepare a certificate setting out the adjustment or change and a brief statement of the facts accounting for the adjustment; and
(ii) file with the Rights Agent and with the transfer agent for the Common Shares a copy of the certificate and mail a brief summary of the certificate to each holder of Rights who requests a copy. Failing to file the certificate or to cause the notice to be given, or any defect in the certificate or notice, will not affect the validity of the adjustment or change.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Time and prior to the Expiration Date:Time:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;program;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares; except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; andand
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would be in effect based upon the number of Common Shares (or Convertible Securities) actually issued upon the conversion, exercise or exchange of such Convertible Securities or upon exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) subparagraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubparagraph 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subparagraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subparagraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subparagraph 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subparagraph 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in subparagraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subparagraphs (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subparagraphs (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subparagraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any
(i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subparagraph 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then-outstanding Common Shares into a greater number of Common Shares;
(iiiii) consolidate or change the then-outstanding Common Shares into a smaller number of Common Shares; or, in the event that the Corporation shall at any time after the Separation Time and prior to the Expiration Time:
(iii) declare or pay a distribution on the Voting Shares payable in Voting Shares or Convertible Securities other than pursuant to any Dividend Reinvestment Plan; or
(iv) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows (without duplication with respect to Section 2.1):
(v) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchasethereof, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For , and
(vi) for greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this subsection 2.3(b)occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(isubsections 2.3(b)(iii) or (iv2.3(b)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend agree to amend, supplement or supplement restate this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common ShareShare (as provided in Section 2.1).
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per security (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, fraction of which which:
(i) the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and of which Share; and
(ii) the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. rights or warrants.
(g) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan or similar share purchase plan, the right to purchase Common Shares is at a price per share security of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dh) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(i) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares); or
(ii) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares other than Common Shares (or Convertible Securities in respect of the Voting Shares other than Common Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per security (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(csubsection 2.3(f)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(i) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to subsection 2.3(b); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsections 2.3(f) or 2.3(h), subject to readjustment to reverse the same if such distribution shall not be made.
(j) In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any securities (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or Convertible Securities in respect of any such securities, in a transaction referred to in any of subsections 2.3(b), 2.3(f) and 2.3(h), inclusive, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections 2.3(b), 2.3(f) and 2.3(h) in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in subsection 5.4(b), determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(b), 2.3(f) and 2.3(h), such adjustments, rather than the adjustments contemplated by subsections 2.3(b), 2.3(f) and 2.3(h), shall be made upon the Board of Directors providing written certification thereof to the Rights Agent as set forth in subsection 2.3(r). The Corporation and the Rights Agent shall amend, supplement or restate this Agreement as appropriate to provide for such adjustments.
(k) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(k) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this subsection 2.3 shall be calculated to the nearest cent.
(l) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(m) Unless the Corporation shall have exercised its election, as provided in subsection 2.3(n), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 2.3(f) and 2.3(h), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to such adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
(n) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 2.3(n), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(o) In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(p) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any:
(i) subdivision or consolidation of the Common Shares;
(ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price;
(iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares;
(iv) stock dividends; or
(v) issuance of rights or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(q) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to represent the securities so purchasable which were represented in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Aurora Cannabis Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Time and prior to the Expiration Datedate of this Agreement:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common SharesShares except as otherwise provided in this Section 2.3; then the Exercise Price and the number of Rights outstanding or, or if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(ia) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”"EXPANSION FACTOR") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iib) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will shall be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will shall have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a the type described in Clause 2.3(b)(iSubsection 2.3(a)(i) or (iv), such shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise other than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date Record Time for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record dateRecord Time) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record dateRecord Date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date Record Time shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied Record Time by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date Record Time, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date Record Time, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a Record Time is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such Record Time had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any the Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, provided however that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date Record Time for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid referred to in Common Shares) Section 2.3(a)(i), but including any dividend payable in other securities of the Corporation), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal Record Time shall be determined by multiplying the Exercise Price in effect immediately prior to such record date Record Time by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such Record Time, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date Record Time is fixed and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such Record Time had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent in the Exercise Price; provided however that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (American Eco Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(ba) In the event the Corporation shall at any time after the Effective Time Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; Shares except as otherwise provided in this Section 2.3, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, ) shall be adjusted as of the payment or effective date in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) : x the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) and y each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereofof such dividend, subdivision, change, consolidation or issuance. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Section 2.3(a) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securitiesthis Section 2.3(a) actually issued upon the exercise of such rightsoccurs. If If, after the Effective Time Date and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSubsections 2.3(a)(i) or (iv2.3(a)(iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to under Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Time fix a record date for the issuance of rights, options or warrants (other than Rights) to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange priceexercise price per share, including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (Convertible Securities, including the price required to be paid to purchase such convertible or exchangeable securities or rights)Convertible Securities) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), assets or rights, options or warrants (excluding those referred rights, options or warrants expiring within 45 calendar days after such record date) to purchase Common Shares or Convertible Securities in Subsection 2.3(c))respect of Common Shares, the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights cash, assets, rights, options or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Any adjustment required by Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to Subsection 2.3(a); or
(ii) the record date for the applicable dividend or distribution, the case of an adjustment made pursuant to Subsection 2.3(b) or (c), subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Effective Date and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in Subsection 2.3(a)(i) or (iv) or Subsections 2.3(b) or (c), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(a), (b) and (c) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(a), (b) and (c), such adjustments, rather than the adjustments contemplated by Subsections 2.3(a), (b) and (c), shall be made. Subject to Subsections 5.4(b) and (c), the Corporation and the Rights Agent may, with the prior approval of the holders of the Common Shares, amend this Agreement as appropriate to provide for such adjustments.
(f) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(g) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(h) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(i) Notwithstanding anything contained in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors shall determine to be advisable, in order that any:
(i) consolidation or subdivision of Common Shares;
(ii) issuance (wholly or in part for cash) of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares;
(iii) stock dividends; or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, subject to applicable taxation laws, shall not be taxable to such shareholders or shall subject such shareholders to a lesser amount of tax.
(j) Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy; Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Dirtt Environmental Solutions LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Subsection 3.1(a).
(b) In the event the Corporation REIT shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend distribution on the Common Shares Units payable in Common Shares Units (or other capital stock securities exchangeable for or convertible into or carrying a right to purchase Units or other securities of the Corporation (or Convertible SecuritiesREIT) other than (A) pursuant to any optional stock dividend programregular distribution reinvestment plan of the REIT providing for the acquisition of Units, Dividend Reinvestment Plan or dividend payable in Common Shares (B) the issue of Units (or other securities exchangeable for or convertible into or carrying a right to acquire Units or other securities of the REIT) to holders of Units in lieu of a but not in an amount which exceeds the value of regular periodic cash dividenddistributions;
(ii) subdivide or оr change the then outstanding Common Shares Units into a greater number of Common SharesUnits;
(iii) consolidate or change the then outstanding Common Shares Units into a smaller number of Common SharesUnits; or
(iv) issue any Common Shares Units (or other capital stock unit of the Corporation (REIT or Convertible Securitiessecurities exchangeable for or convertible into or carrying a right to purchase Units or other securities of the REIT) in respect of, in lieu of, of or in exchange for existing Common SharesUnits except as otherwise provided in this Section 2.3; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur occurs after the Separation Time, the securities purchasable upon on exercise of Rights, ) shall be adjusted in the manner set forth belowfollowing manner. If the Exercise Price and the number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares Units (or other capital stocksecurities of the REIT) (the “Expansion Factor”) that a holder of one Common Share Unit immediately prior to such dividenddistribution, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares Units with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the REIT issued or issuable in respect of such dividenddistribution, subdivision, changeconsolidation, consolidation change or issuance, so that each such Common Share Unit (or other capital stocksecurity of the REIT) will have exactly one Right associated with itit in effect following the payment or effective date of the event referred to in Clause 2.3(b)(i), 2.3(b)(ii), 2.3(b)(iii) or 2.3(b)(iv), as the case may be. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividenddistribution, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Datedistribution, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) subdivision, consolidation, change or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1issuance. Adjustments pursuant to Section 2.3 this Subsection 2.3(b) shall be made successively, successively whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share) occurs.
(c) In the event the Corporation REIT shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a а record date for the issuance to all holders of Common Shares of rights, options or warrants to all holders of Units entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (Units or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Shares) purchase Units at a price per Common Share Unit (orог, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase Units, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per shareUnit) less than 90% of the Market Price per Common Share Unit on the second Trading Day immediately preceding such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares Units outstanding on such record date date, plus the number of Common Shares Units that the aggregate offering price of the total number of Common Shares Units so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Unit; and
(ii) the denominator of which the denominator shall be the number of Common Shares Units outstanding on such record date date, plus the number of additional Common Shares Units to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Trustees, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders Holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then have been in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (Units or securities convertible into or exchangeable or exercisable for Common Shares) Units actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares Units (whether from treasury shares or otherwise) pursuant to a distribution reinvestment plan or any Dividend Reinvestment Plan employee benefit, Unit purchase option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the CorporationREIT; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares Units is at a price per share Unit of not less than 90% of the current market price per share Unit (determined as provided in such plans) of the Common Shares).
(d) In the event the Corporation REIT shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares Units of evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash distribution or a dividend distribution paid in Common Shares) Units, but including any distribution payable in securities other than Units), or subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c))) at a price per Unit that is less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Unit on such record date, less the fair market value (as determined in good faith by the Board of DirectorsTrustees, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per Unit basis, of the portion of the assets, evidences of indebtedness, rights cash, assets, subscription rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Unit. Such adjustment adjustments shall be made successively whenever such a а record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Unit or Right. Notwithstanding the first sentence of this Subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the REIT shall at any time after the Record Time and prior to the Expiration Time issue any securities of the REIT (other than Units), or rights, options or warrants to subscribe for or purchase any such securities of the REIT, or securities convertible into or exchangeable for or carrying a right to purchase any such securities of the REIT, in a transaction referred to in Clause 2.3(b)(ii) or (iv), if the Board of Trustees acting in good faith determines that the adjustments contemplated by Subsection 2.3(b) in connection with such transaction will not appropriately protect the interests of the Holders of Rights, the Board of Trustees acting in good faith may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The REIT and the Rights Agent shall have authority, with such prior approval of the holders of the Units or the Holders of Rights as may be required to amend this Agreement in accordance with Section 5.6 and subject to receipt of all necessary approvals of the securities exchanges on which the Units are at the relevant time listed or approved to trading, to amend this Agreement as appropriate to provide for such adjustments.
(g) Unless the REIT shall have exercised its election as provided in Subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c) and (d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Units, as the case may be (calculated to the nearest one ten-thousandth), obtained by:
(i) multiplying:
(A) the number of such Units which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) The REIT may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Units purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Units for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The REIT shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(h), the REIT shall, as promptly as is practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.7, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the REIT, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the REIT, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the REIT, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(i) Each Right originally issued by the REIT subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Units purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(j) If as a result of an adjustment made pursuant to this Section 2.3, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Units, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Units contained in this Section 2.3, and the provisions of this Agreement with respect to the Units shall apply on like terms to any such other securities.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Units issuable upon the exercise of the Rights, the Rights Certificate theretofore and thereafter issued may continue to express the Exercise Price per Unit and the number of Units which were expressed in the initial Rights Certificates issued hereunder.
(l) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the REIT may elect to defer until the occurrence of such event the issuance to the Holder of any Right exercised after such record date of the number of Units and other securities of the REIT, if any, issuable upon such exercise over and above the number of Units and other securities of the REIT, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the REIT shall deliver to such Holder a due bill or other appropriate instrument evidencing such Holder’s right to receive such additional Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding anything in this Section 2.3 to the contrary, the REIT shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Trustees shall determine to be advisable in order that any (i) consolidation or subdivision of Units, (ii) issuance wholly for cash of any Unit or securities that by their terms are convertible into or exchangeable for Units, (iii) Unit distributions, or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the REIT to holders of its Units, shall not be taxable to such holders.
(n) Whenever an adjustment to the Exercise Price
Appears in 1 contract
Sources: Unitholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3. Fractional interests in securities resulting from such adjustments are subject to Section 5.5.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide subdivides or change changes the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidates or change changes the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, or in exchange for existing Common Shares; then , the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjustedas follows:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion "Adjustment Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Adjustment Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are .
(c) Adjustments pursuant to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares Subsection 2.3(b) occurs.
(or Convertible Securitiesd) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an 3.1 hereof.
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the issuance making of a distribution to substantially all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if in the case of a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per share)) less than 90% 90 per cent of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be so offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall will be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans dividend reinvestment plan and/or any share purchase plan (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend reinvestment plan or similar share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% 90 per cent of the current market price per share Common Share (determined as provided in accordance with such plans) of the Common Shares.
(dg) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the making of a distribution to substantially all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares but including any dividend payable in securities other than Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares) at a price per Common Share (or, in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right) less than 90 per cent of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c2.3(f)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to a Common Share.
(h) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Subsections 2.3(f) or (g).
(i) In the event that the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in Clauses 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(b), (f) or (g) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Corporation may, subject to Section 5.4, determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(b), (f) and (g), such adjustments, rather than the adjustments contemplated by Subsections 2.3(b), (f) and (g), shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(j) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent in such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments made pursuant to this Section 2.3 shall be made to the nearest cent or to the nearest one hundredth of a Common Share or a Right, as the case may be.
(k) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(l) Unless the Corporation shall have exercised its election, as provided in Subsection 2.3(m), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(f) and (g), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to this adjustment, by (B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(m) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(m) the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(n) Irrespective of any adjustment or change in the securities purchasable upon exercise of one Right. Such the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(o) In any case in which this Section 2.3 shall require that an adjustment shall in an Exercise Price be made successively whenever such effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(p) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any (i) subdivision or consolidation of the Common Shares, (ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price, (iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, subject to applicable taxation laws, shall not be taxable to such shareholders.
(q) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is fixedtaken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (TLC Laser Center Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3. Fractional interests in securities resulting from such adjustments are subject to Section 5.5.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare declares or pay pays a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(ii) subdivide subdivides or change changes the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidates or change changes the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue issues any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, or in exchange for existing Common Shares; then , the Exercise Price and the number of Rights outstanding or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjustedas follows:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion "Adjustment Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, exchange or conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Adjustment Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are .
(c) Adjustments pursuant to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares Subsection 2.3(b) occurs.
(or Convertible Securitiesd) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an 3.1 hereof.
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the issuance making of a distribution to substantially all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if in the case of a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per share)) less than 90% 90 per cent of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth belowadjusted. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be so offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of in a consideration part or all of which shall will be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans dividend reinvestment plan and/or any share purchase plan (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan dividend reinvestment plan or similar share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% 90 per cent of the current market price per share Common Share (determined as provided in accordance with such plans) of the Common Shares.
(dg) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix fixes a record date for the making of a distribution to substantially all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares but including any dividend payable in securities other than Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares) at a price per Common Share (or, in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right) less than 90 per cent of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c2.3(f)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to a Common Share.
(h) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b); and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Subsections 2.3(f) or (g).
(i) In the event that the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in Clauses 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(b), (f) or (g) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Corporation may, subject to Section 5.4, determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(b), (f) and (g), such adjustments, rather than the adjustments contemplated by Subsections 2.3(b), (f) and (g), shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(j) Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one per cent in such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments made pursuant to this Section 2.3 shall be made to the nearest cent or to the nearest one hundredth of a Common Share or a Right, as the case may be.
(k) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(l) Unless the Corporation shall have exercised its election, as provided in Subsection 2.3(m), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(f) and (g), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to this adjustment, by (B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(m) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(m) the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(n) Irrespective of any adjustment or change in the securities purchasable upon exercise of one Right. Such the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(o) In any case in which this Section 2.3 shall require that an adjustment shall in an Exercise Price be made successively whenever such effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder a due bill or other appropriate ▇▇▇trument evidencing such holder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(p) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any (i) subdivision or consolidation of the Common Shares, (ii) issuance wholly for cash of any Common Shares at less than the applicable Market Price, (iii) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, subject to applicable taxation laws, shall not be taxable to such shareholders.
(q) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is fixedtaken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (TLC Laser Center Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation If Crosshair shall at any time after the Effective date of the Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCrosshair) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCrosshair) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted as of the payment or effective date in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and Subsection 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under Subsection 3.1(a) . If the Exercise Price and number of Rights outstanding are to be adjusted:
(iv) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iivi) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation Crosshair shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i2.3(a)(i) or (iv2.3(a)(iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation Crosshair and the Rights Agent shall have authority to amend or supplement this Agreement as necessary or appropriate if required in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation Crosshair shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation If Crosshair shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any a Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the CorporationCrosshair; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation If Crosshair shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid referred to in Clause 2.3(a)(i), but including any dividend payable in securities other than Common Shares) ), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding any other provision of this Agreement to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
(ii) the Expiration Time.
(e) If Crosshair shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock in a transaction referred to in Clauses 2.3(a)(i) or 2.3(a)(iv), and if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsections 2.3(a), 2.3(b) and 2.3(c) in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsections 2.3(a), 2.3(b) and 2.3(c), such adjustments, rather than the adjustments contemplated by Subsections 2.3(a), 2.3(b) and 2.3(c), shall be made. Crosshair and the Rights Agent shall have authority to amend this Agreement as necessary or appropriate if required to provide for such adjustments.
(f) Each Right originally issued by Crosshair subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided for herein.
(g) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(h) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, Crosshair may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of Crosshair, if any, issuable upon such exercise over and above the number of Common Shares and other securities of Crosshair, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that Crosshair shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(i) Notwithstanding anything contained in this Section 2.3 to the contrary, Crosshair shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Directors shall determine to be advisable, in order that any:
(i) consolidation or subdivision of Common Shares;
(ii) issuance (wholly or in part for cash) of Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares;
(iii) stock dividends; or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by Crosshair to holders of its Common Shares, shall not be taxable to such shareholders.
(j) If, as a result of an adjustment made pursuant to Section 3.1, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other securities.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Crosshair Exploration & Mining Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) paragraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in paragraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subsections (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that any (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subsection 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Sources: Shareholder Rights Protection Plan Agreement (Challenger Energy Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or Convertible Securities in respect of Common Shares) at a price per Common Share (or, in the case of a Convertible Security in respect of Common Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such dividend or distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(b) In the event the Corporation shall will at any time after the Effective Time date of this Agreement and prior to the Expiration Date:Time,
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Share (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall will occur after the Separation Time, the securities purchasable upon exercise of Rights, shall Rights will be adjusted as of the payment or effective date in respect of such event in the manner set forth below. .
(c) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if it in effect following the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder payment or effective date of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(bSections 2.3(b)(i), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the issuance to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire Common Shares) at a price per Common Share (or, if a Convertible Security having a purchase, exercise, conversion or exchange price, including the price required to be paid to purchase such convertible or exchangeable security or right, per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”ii), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolutioniii) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.or
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendplan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchasethereof, exercise, conversion or exchange rights, if any); and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchaseAdjustments made pursuant to this Subsection 2.3(b)shall be made successively, exercisewhenever an event referred to in this Subsection 2.3(b) occurs.
(c) If, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause Clauses 2.3(b)(i) or (iv2.3(b)(iv), shares of or such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(A) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid .paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(B) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective date of the Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendPlan;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, shall be adjusted as of the payment or effective date in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and subsection 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under subsection 3.1(a). If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(ii) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rightsdividend, subdivision, change, consolidation or issuance. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an In the event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any a Dividend Reinvestment Plan or any employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an annual cash dividend or a dividend paid referred to in Section 2.3(a)(i), but including any dividend payable in securities other than Common Shares) ), assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c)2.3(b) hereof), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a share. Notwithstanding the first sentence of this Subsection 2.3(d), any adjustment required by Section 2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise to such adjustment; or
Appears in 1 contract
Sources: Shareholder Agreements
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Voting Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share. Notwithstanding anything else in this subsection 2.3(a), the Exercise Price shall not be adjusted to give effect to the two-for-one stock split submitted to the Corporation’s shareholders for approval at the 2002 annual general meeting of the Corporation’s shareholders.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common purchase or subscribe for Voting Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Voting Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares ) or rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares having a conversion or rights, options or warrants exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent shall be binding on the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any shares of capital stock (other than Common Shares ), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Suncor Energy Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities shares subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Voting Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date Record Time therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); andequal
(iia) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Date, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. If In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each each, such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common Sharespurchase or subscribe for Voting Shares ) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Voting Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) of the Corporation whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares ) or rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares having a conversion or rights, options or warrants exercise price per share (including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(cSection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionDirectors of the Corporation) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or Record Time for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares ), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with Section 5.4(b) and (c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Infowave Software Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger or amalgamation in which the Corporation is the continuing corporation) of evidences of indebtedness or assets indebtedness, cash (other than a Regular Periodic Cash Dividend (as defined below) an ordinary course dividend or a dividend paid referred to in Common Shares) paragraph 2.3(a)(i)), assets or rights, options rights or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, rights rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest hundredth of a share. Notwithstanding the first sentence of this subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment and (ii) the Termination Date. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate, mail a brief summary thereof to each holder of Rights, and issue a press release advising of the relevant adjustment.
(f) If the Corporation shall at any time after the Record Time and prior to the Separation Time issue any shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in paragraph (a)(i) or (a)(iv) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Directors may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections (a), (b) and (c) above, but subject to the prior consent of the holders of Common Shares or Rights obtained in accordance with section 5.4, such adjustments, rather than the adjustments contemplated by subsections (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
(g) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right, all subject to further adjustment as provided herein.
(h) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunder.
(i) In any case in which this Section 2.3 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(j) Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that the Board of Directors shall in good faith determine to be advisable in order that an (i) consolidation or subdivision of the Common Shares, (ii) issuance wholly or in part for cash or Common Shares or securities that by their terms are convertible into or exchangeable for Common Shares, (iii) stock dividends or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares shall not be taxable to such shareholders.
(k) The Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Section 5.1 or Section 5.4, take (or permit any Subsidiary of the Corporation to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(l) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to and shall be made prior to, any adjustment required pursuant to Section 3.1.
(m) If the Corporation shall at any time after the Record Time and prior to the earlier of the Separation Time and the Expiration Time issue any Common Shares otherwise than in a transaction referred to in subsection 2.3(a) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
Appears in 1 contract
Sources: Shareholder Protection Rights Agreement (Transglobe Energy Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in on Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (or Convertible Securitiessecurities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSubsections 2.3(a)(i) or (iv2.3(a)(iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 an
(a) occurs. If In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue a record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixedrights or warrants. For purposes of this AgreementSubsection 2.3(b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Aurizon Mines LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend programplan, Dividend Reinvestment Plan dividend reinvestment plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(A) if the Exercise Price and number of Rights outstanding are to be adjustedadjusted such that:
(i1) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exerciseexchange, conversion or exchange acquisition rights, if any); , and
(ii2) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Subsection 2.3(b) shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares this Subsection 2.3(b) occurs.
(or Convertible Securitiesc) actually issued upon the exercise of such rights. If If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause Clauses 2.3(b)(i) or (iv2.3(b)(iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. .
(d) If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
(e) In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cf) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or shares having the same rights, privileges and preferences as Common Shares (“equivalent Common Shares”)) or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) Shares or equivalent Common Shares at a price per Common Share or per equivalent Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(A) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares and/or equivalent Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(B) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares and/or Equivalent Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Subsection 3.1(a).
(b) In the event the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities exchangeable for or convertible into or carrying a right to purchase Common Shares or other securities of the Corporation) other than (A) pursuant to any regular dividend reinvestment plan of the Corporation providing for the acquisition of Common Shares, or (B) the issue of Common Shares (or Convertible Securitiesother securities exchangeable for or convertible into or carrying a right to acquire Common Shares or other securities of the Corporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in holders of Common Shares in lieu of a but not in an amount which exceeds the value of regular periodic cash dividenddividends;
(ii) subdivide or оr change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities exchangeable for or convertible into or carrying a right to purchase Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common SharesShares except as otherwise provided in this Section 2.3; then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur occurs after the Separation Time, the securities purchasable upon on exercise of Rights, ) shall be adjusted in the manner set forth belowfollowing manner. If the Exercise Price and the number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, changeconsolidation, consolidation change or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with itit in effect following the payment or effective date of the event referred to in Clause 2.3(b)(i), 2.3(b)(ii), 2.3(b)(iii) or 2.3(b)(iv), as the case may be. For greater certainty, if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, changeconsolidation, consolidation change or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time and prior to the Expiration Datedividend, the Corporation shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(i) subdivision, consolidation, change or (iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1issuance. Adjustments pursuant to Section 2.3 this Subsection 2.3(b) shall be made successively, successively whenever an event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share) occurs.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a а record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares, shares having the same rights, privileges, restrictions and conditions as Common Shares (“equivalent common shares”), or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) Shares or equivalent common shares at a price per Common Share or per equivalent common share (orог, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares, having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares and/or equivalent common shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares and/or equivalent common shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders Holders of Rights. Such resolution adjustment shall also confirm the amount to be credited for the issue of made successively whenever such Common Shares a record date is fixed, and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent event that such rights of purchaserights, exerciseoptions or warrants are not so issued, conversion or exchange if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then have been in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on upon the number of Common Shares (Shares, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares) Shares actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to a dividend reinvestment plan or any Dividend Reinvestment Plan employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights rights, options or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planall such cases, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares (including any such distribution made in connection with a merger in which the Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets assets, including cash (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) , but including any dividend payable in securities other than Common Shares), or subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c))) at a price per Common Share that is less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price shall in respect of the Rights to be adjusted. The Exercise Price in effect after such record date will equal shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common Share on such record date, less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per share basis, of the portion of the assets, evidences of indebtedness, rights cash, assets, subscription rights, options or warrants so to be distributed applicable to distributed; and
(ii) the securities purchasable upon exercise denominator of one Rightwhich shall be such Market Price per Common Share. Such adjustment adjustments shall be made successively whenever such a а record date is fixed, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(e) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Right. Notwithstanding the first sentence of this Subsection 2.3(e), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any securities of the Corporation (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such securities of the Corporation, or securities convertible into or exchangeable for or carrying a right to purchase any such securities of the Corporation, in a transaction referred to in Clause 2.3(b)(ii) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(b) in connection with such transaction will not appropriately protect the interests of the Holders of Rights, the Board of Directors acting in good faith may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Corporation and the Rights Agent shall have authority, with such prior approval of the holders of the Common Shares or the Holders of Rights as may be required to amend this Agreement in accordance with Section 5.6 and subject to receipt of all necessary approvals of the securities exchanges on which the Common Shares are at the relevant time listed or approved to trading, to amend this Agreement as appropriate to provide for such adjustments.
(g) Unless the Corporation shall have exercised its election as provided in Subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c) and (d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares, as the case may be (calculated to the nearest one ten-thousandth), obtained by:
(i) multiplying:
(A) the number of such Common Shares which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(h), the Corporation shall, as promptly as is practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.7, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(i) Each Right originally issued by the Corporation subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(j) If as a result of an adjustment made pursuant to this Section 2.3, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Common Shares contained in this Section
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities Shares subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(ba) In the event that the Corporation shall at any time after the Effective Amendment Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment program or a dividend payable in Common Voting Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Voting Shares (or other capital stock or securities exchangeable for or convertible into or giving a right to acquire Voting Shares or other capital stock of the Corporation (or Convertible Securitiesstock) in respect of, in lieu of, of or in exchange for the existing Common SharesShares in a reclassification, amalgamation, merger, statutory arrangement or consolidation; then the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and the number of Rights outstanding are to be adjusted:
adjusted (iA) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “Expansion Factor”) that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiB) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon the exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon the exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter or as a result thereof. To the extent that such rights of purchaseIf, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Amendment Time and prior to the Expiration DateTime, the Corporation shall issue any shares of Shares or capital stock other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 3.2(a)(i) or (iv), such shares of such or capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which that would require an adjustment under both this Section 2.3 section 3.2 and Section 3.1section 4.1 hereof, the adjustment provided for in this Section 2.3 section 3.2 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1section 4.1 hereof. Adjustments Such adjustment pursuant to Section 2.3 this subsection 3.2(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 3.2(a) occurs. If In the event the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire Common purchase or subscribe for Voting Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Voting Shares, having a purchaseconversion, exerciseexchange, conversion or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementsubsection (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or director, officer or employee benefit or similar plans or stock option plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment plan, the right to purchase Common Shares is at a price per share of not less than 9095% of the current market price per share (determined as provided in such plans) of the Common Shares.
(dc) In the event that the Corporation shall at any time after the Effective Amendment Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares) at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares having a conversion or exercise price per share (including the price required to be paid to purchase such Convertible Security) less than the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 3.2(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this section 3.2 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to subsection (a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsection (b) or (c) above subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event that the Corporation shall at any time after the Amendment Time and prior to the Expiration Time issue any Shares of capital stock (other than Common Shares), or rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board of Directors acting in good faith determines that the adjustments contemplated by subsections (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate, and, if the adjustments contemplated by subsections (a), (b) and (c) above are applicable, notwithstanding such subsections, the adjustments so determined by the Corporation, rather than adjustments contemplated by subsections (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsections 7.5(b) and 7.5(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this section 3.2 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this section 3.2, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the validity of any such adjustment or change.
(g) Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) 2.3.1 The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.32.3 and in Article 3.
(b) 2.3.2 In the event that the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(ia) declare or pay a dividend on the Common Shares payable in Common Voting Shares or other capital stock of the Corporation (or Convertible Securities) Securities in respect thereof other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividendreinvestment plan;
(iib) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iiic) consolidate or change the then outstanding Common Shares into a smaller number of Common Shares; or
(ivd) issue any Common Voting Shares or other capital stock of the Corporation (or Convertible SecuritiesSecurities in respect thereof) in respect of, in lieu of, of or in exchange for existing Common Shares; , whether in a reclassification, amalgamation, statutory arrangement, consolidation or otherwise, then the Exercise Price and the number of Rights outstanding (or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon the exercise of Rights, ) shall be adjusted in the manner set forth below. If as follows:
(i) if the Exercise Price and number of Rights outstanding are to be adjusted:
(iA) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities of the Corporation) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiB) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares securities of the Corporation issued or issuable in respect of such dividend, subdivision, change, consolidation or issuance, so that each such Common Share (or other capital stocksecurity of the Corporation) will have exactly one Right associated with it. For greater certainty, ; and
(ii) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior Adjustments made pursuant to the expiration thereof, the Exercise Price this Section 2.3.2 shall be readjusted made successively, whenever an event referred to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If this Section 2.3.2 occurs.
2.3.3 If, after the Effective Record Time and prior to the Expiration DateTime, the Corporation shall issue any shares of capital stock its securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iSections 2.3.2(a) or (iv2.3.2(d), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. .
2.3.4 If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an .
2.3.5 In the event referred to in Section 2.3 occurs. If the Corporation shall at any time after the Effective Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)Section 2.3.2, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(ca) In the event the Corporation shall shall, at any time after the Effective Record Time and prior to the Separation Time Expiration Time, fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant to which the holder may acquire in respect of Common Shares) at a price per Common Share (or, if in the case of such a Convertible Security Security, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price per share (including the price required to be paid to purchase such convertible or exchangeable security or right, per shareConvertible Security)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights Convertible Securities so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rightsConvertible Securities)) would purchase at such Market Price per Common Share and Share; and
(ii) of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). .
(b) In case such subscription price may be paid is satisfied, in whole or in part, by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination Directors. Such adjustment shall be described in made successively whenever such a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue record date is not less than the amount for the issue of the Common Sharesfixed. To the extent that such rights of purchase, exercise, conversion or exchange warrants are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to in the Exercise Price which would then be in effect manner contemplated above based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. rights or warrants.
(c) For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan or any share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation or the investment of periodic optional payments or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrantswarrants by the Corporation) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar interest reinvestment or share purchase plan, the right to purchase Common Shares is at a price per share of not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) 2.3.7 In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of of:
(a) evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares); or
(b) or rights, options rights or warrants entitling them to subscribe for or purchase Voting Shares (or Convertible Securities in respect of Voting Shares), at a price per Voting Share (or, in the case of a Convertible Security in respect of Voting Shares, having a conversion, exchange or exercise price per share (including the price required to be paid to purchase such Convertible Security)) less than 90% of the Market Price per Common Share on such record date (excluding those rights or warrants referred to in Subsection 2.3(c)Section 2.3.6), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will shall be equal to the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights rights, warrants or warrants other securities so to be distributed applicable to each of the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
2.3.8 Each adjustment made pursuant to this Section 2.3 shall be made as of:
(a) the payment or effective date for the applicable dividend, subdivision, change, combination or issuance, in the case of an adjustment made pursuant to Section 2.3.2; and
(b) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to Section 2.3.6 or 2.3.7, subject to readjustment to reverse the same if such distribution shall not be made.
2.3.9 In the event the Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares (other than Common Shares), or rights or warrants to subscribe for or purchase any such shares, or Convertible Securities in respect of any such shares, in a transaction referred to in any of Sections 2.3.2(a) to 2.3.2(d), inclusive, if the Board of Directors acting in good faith determines that the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7 in connection with such transaction will not appropriately protect the interests of the holders of Rights, then the Board of Directors may from time to time, but subject to obtaining the prior approval of the holders of the Rights obtained as set forth in Section 5.4.2, determine what other adjustments to the Exercise Price, number of Rights or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Sections 2.3.2, 2.3.6 and 2.3.7, such adjustments, rather than the adjustments contemplated by Sections 2.3.2, 2.3.6 and 2.3.7, shall be made upon the Board of Directors providing written certification thereof to the Rights Agent as set forth in Section 2.3.17. The Corporation and the Rights Agent shall amend this Agreement as appropriate to provide for such adjustments.
2.3.10 Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such Exercise Price; provided, however, that any adjustments which by reason of this Section 2.3.10 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All adjustments to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent.
2.3.11 All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
2.3.12 Unless the Corporation shall have exercised its election, as provided in Section 2.3.13, upon each adjustment of an Exercise Price as a result of the calculations made in Sections 2.3.6 and 2.3.7, each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares obtained by:
(a) multiplying:
(i) the number of Common Shares covered by a Right immediately prior to such adjustment; by
(ii) the Exercise Price in effect immediately prior to such adjustment; and
(b) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment.
2.3.13 The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become the number of Rights obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 2.3.13, the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to Section 5.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
2.3.14 In any case in which this Section 2.3 shall require that an adjustment in an Exercise Price be made effective as of a record date for a specified event, the Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the Corporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
2.3.15 Notwithstanding anything in this Section 2.3 to the contrary, the Corporation shall be entitled to make such adjustments in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its good faith judgment the Board of Directors shall determine to be advisable in order that any:
(a) subdivision or consolidation of the Common Shares;
(b) issuance wholly for cash of any Common Shares at less than the applicable Market Price;
(c) issuance wholly for cash of any Common Shares or securities that by their terms are exchangeable for or convertible into or give a right to acquire Common Shares;
(d) stock dividends; or
(e) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
2.3.16 Irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofor and thereafter issued may continue to represent the securities so purchasable which were represented in the initial Rights Certificates issued hereunder.
2.3.17 Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(a) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(b) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate an
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Northgate Exploration LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event If the Corporation shall at any time after the Effective Record Time and prior to the Expiration DateTime:
(i) declare or pay a dividend on the its Common Shares payable in Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan or dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate combine or change the outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock of the Corporation (securities exchangeable for or Convertible Securitiesconvertible into or giving a right to acquire Common Shares) in respect of, in lieu of, of or in exchange for existing Common Shares; then except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in as of the manner set forth below. If payment or effective date such that:
(A) if the Exercise Price and number of Rights outstanding are to be adjusted:;
(iI) the Exercise Price in effect after such adjustment shall will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stock) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any)thereof; and
(iiII) each Right held prior to such adjustment shall will become that number of Rights equal to the Expansion Factor Factor; and the adjusted number of Rights will be deemed to be distributed among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stock) will have exactly one Right associated with it. For greater certainty, ; and
(B) if the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Record Time and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iparagraphs 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.1, the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1. Adjustments pursuant to Section 2.3 shall be made successively, whenever an event referred to in Section 2.3 occurs. .
(b) If the Corporation shall at any time after the Effective Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(c) In the event the Corporation shall at any time after the Effective Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares of rights, options or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares having a purchaseconversion, exercise, conversion exchange or exchange exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right, right per share) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall to be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal be adjusted to that price determined by multiplying the Exercise Price in effect immediately prior to such record date multiplied by a fraction, :
(i) the numerator of which the numerator shall be the number of Common Shares outstanding on such record date date, plus the number of Common Shares that the aggregate offering price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and Share; and
(ii) the denominator of which the denominator shall be the number of Common Shares outstanding on such record date date, plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration consideration, part or all of which shall may be in a form other than cash (the “Non-Cash Consideration”)cash, the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) Directors, whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. For purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, in the case of any Dividend Reinvestment Plan or similar planPlan, the right to purchase Common Shares is at a price per share of not less than 90% 90 percent of the current market price per share (determined as provided in such plans) Market Price of the Common Shares.
(d) In the event the Corporation shall at any time after the Effective Time and prior to the Separation Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) or a dividend paid in Common Shares) or rights, options or warrants (excluding those referred to in Subsection 2.3(c)), the Exercise Price shall be adjusted. The Exercise Price in effect after such record date will equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board Resolution) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to the securities purchasable upon exercise of one Right. Such adjustment shall be made successively whenever such a record date is fixed.
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Transglobe Energy Corp)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ba) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Expiration DateTime:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) other than pursuant to any optional stock dividend program, Dividend Reinvestment Plan dividend reinvestment plan or a dividend payable in Common Shares in lieu of a regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate consolidate, combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock securities or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Corporation (or Convertible SecuritiesCorporation) in respect of, in lieu of, of or in exchange for existing Common Shares; then Shares in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the Exercise Price and the number of Rights outstanding outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights, Rights shall be adjusted in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
adjusted (ix) the Exercise Price in effect after such adjustment shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Common Shares (or other capital stocksecurities) (the “"Expansion Factor”") that a holder of one Common Share immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof and (assuming the exercise of all such purchase, exercise, conversion or exchange rights, if any); and
(iiy) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor Factor, and the adjusted number of Rights will be deemed to be distributed allocated among the Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Common Shares issued or issuable in respect of such dividend, subdivision, change, consolidation combination or issuance, so that each such Common Share (or other capital stocksecurities) will have exactly one Right associated with it. For greater certainty, if If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the number of securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such dividend, subdivision, change, consolidation combination or issuance would hold thereafter as a result thereof. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or Convertible Securities) actually issued upon the exercise of such rights. If after the Effective Time Amendment Date and prior to the Expiration Date, Time the Corporation shall issue any shares of capital stock securities other than Common Shares in a transaction of a type described in Clause 2.3(b)(iclause 2.3(a)(i) or (iv), shares of such capital stock securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent shall agree to amend or supplement this Agreement in order to effect such treatment. If an event occurs which would require an adjustment under both this Section 2.3 and Section 3.13.1 hereof, the adjustment provided for in this Section 2.3 shall be in addition to, to and shall be made prior to, to any adjustment required pursuant to Section 3.13.1 hereof. Adjustments pursuant to Section 2.3 this subsection 2.3(a) shall be made successively, whenever an event referred to in Section 2.3 this subsection 2.3(a) occurs. If In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(b)the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such associated Common Share.
(cb) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the issuance making of a distribution to all holders of Common Shares of rights, options rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares (or Convertible Securities pursuant securities convertible into or exchangeable for or carrying a right to which the holder may acquire purchase or subscribe for Common Shares) at a price per Common Share (or, if a Convertible Security security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares, having a purchaseconversion, exercise, conversion exchange or exchange price, exercise price (including the price required to be paid to purchase such convertible or exchangeable security or right, right per shareCommon Share)) less than 90% of the Market Price per Common Share on such record date, the Exercise Price shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction, of which the numerator shall be the number of Common Shares outstanding on such record date plus the number of Common Shares that which the aggregate offering offer price of the total number of Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Common Share and of which the denominator shall be the number of Common Shares outstanding on such record date plus the number of additional Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid is satisfied in whole or in part by delivery of consideration part or all of which shall be in a form other than cash (the “Non-Cash Consideration”), the reasonable present cash value of such Non-Cash Consideration consideration shall be as determined in good faith by the Board of Directors (by Board Resolution) whose determination shall be described in a resolution (and an accompanying set of written instructions to the Rights Agent in respect of the mechanics of the delivery to and acceptance by the Rights Agent of such Non-Cash Consideration) statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights. Such resolution shall also confirm the amount to be credited for the issue of such Common Shares and shall confirm that in the opinion of the Board of Directors, the present cash value of the sum of the cash consideration, if any, and the Non- Cash Consideration for the issue is not less than the amount for the issue of the Common Shares. To the extent that such rights of purchase, exercise, conversion or exchange are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based on the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. Such adjustment shall be made successively whenever such a record date is fixed. For purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury shares or otherwise) pursuant to any Dividend Reinvestment Plan dividend or interest reinvestment plan, stock divided program and/or any Common Share purchase plan providing for the reinvestment of dividends, receipt of dividends in the form of Common Shares or interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit or similar plans (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed to constitute an issue of rights or warrants by the Corporation; provided, however, that, that in the case of any Dividend Reinvestment Plan dividend or similar planinterest reinvestment plan or stock dividend program, the right to purchase Common Shares is at a price per share Common Share of not less than 90% of the current market price per share Common Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Corporation shall at any time after the Effective Time Amendment Date and prior to the Separation Expiration Time fix a record date for the making of a distribution to all holders of Common Shares of evidences of indebtedness or assets (other than a Regular Periodic Cash Dividend (as defined below) regular periodic cash dividend or a dividend paid in Common Shares) or rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (or securities convertible into, exchangeable for or carrying a right to subscribe for or purchase Common Shares) at a price per Common Share (or in the case of a security convertible into, exchangeable for or carrying a right to subscribe for or purchase Common Shares, having a conversion, exchange, exercise, subscription or purchase price including the price required to be paid to purchase such Convertible Security) less than 90% of the Market Price per Common Share on such record date (excluding those referred to in Subsection 2.3(csubsection 2.3(b)), the Exercise Price shall be adjustedadjusted in the manner set forth below. The Exercise Price in effect after such record date will shall equal the Exercise Price in effect immediately prior to such record date less the fair market value (as determined in good faith by the Board of Directors, by Board ResolutionBoard) of the portion of the assets, evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one RightRight (such determination to be described in a statement filed with the Rights Agent and the holders of the Rights). Such adjustment shall be made successively whenever such a record date is fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, consolidation, change, combination or issuance, in the case of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the case of an adjustment made pursuant to paragraph (b) or (c) above, subject to readjustment to reverse the same if such distribution shall not be made.
(e) In the event the Corporation shall at any time after the Amendment Date and prior to the Expiration Time issue any securities of the Corporation (other than Common Shares), or rights or warrants to subscribe for or purchase any such securities, or securities convertible into or exchangeable for any such securities, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if the Corporation shall take any other action (other than the issue of Common Shares) which might have a negative effect on the holders of Rights, if the Board acting in good faith determines that the adjustments contemplated by paragraphs (a), (b) and (c) above are not applicable or will not appropriately protect the interests of the holders of Rights, the Corporation may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, if the adjustments contemplated by paragraphs (a), (b) and (c) above are applicable, notwithstanding such paragraphs, the adjustments so determined by the Corporation, rather than adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. The Corporation and the Rights Agent shall amend this Agreement in accordance with subsection 5.4(b) and 5.4(c), as the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with the transfer agent for the Common Shares a copy of such certificate and mail a brief summary thereof to each holder of Rights.
(g) Subject to Section 5.3, irrespective of any adjustment or change in the securities purchasable upon exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
Appears in 1 contract