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 and in Subsection 3.1(a). (b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time: (i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares; (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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification. (c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and (ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments. (g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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. (i) 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. (j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares. (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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders. (n) The Company 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 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. (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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Mercator Minerals LTD), Shareholder Rights Plan Agreement (Mercator Minerals 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 2.03 and in Subsection 3.1(a3.01(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares of the Corporation payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of of, or in exchange for existing Common Shares except as otherwise provided in this Section 2.32.03; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares shares) at a price per Common Share or per equivalent common share (or, or if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares (or securities convertible into or exchangeable or exercisable for Common Shares or equivalent common shares) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(d) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, provided that, in all 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.
(de) In case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(c2.03(c)) hereof at a price per Common Share that is less than ninety (90% %) of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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.
(ef) Notwithstanding anything herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, however that any adjustments which by reason of this Subsection 2.3(e2.03(f) 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 2.03 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(e2.03(f), any adjustment required by this Section 2.3 2.03 shall be made no later than the Expiration Time.
(fg) In If as a result of an adjustment made pursuant to this Section 2.03, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive any shares of capital stock (other than Common Shares), or rightsthereafter 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 is practicable to the provisions with respect to the Common Shares contained in this Section 2.03, options or warrants and the provisions of this Agreement with respect to subscribe for or purchase the Common Shares shall apply on like terms to any such capital stockother shares.
(h) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, 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 at 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 adjusted Exercise Price, the respective number of Rights and/or securities Common Shares, as the case may be, purchasable from time to time hereunder 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 Company and the Rights Agent shall have authority with the immediately prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereofsuch time, all subject to further adjustment as appropriate to provide for such adjustmentsprovided herein.
(gi) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(h2.03(j), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d2.03(c) and (f2.03(e), 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.
(hj) The Company 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 Company 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(h2.03(j), the Company 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 5.65.06, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(l) In any case in which this Section 2.3 2.03 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, provided that the Company Corporation shall deliver to such Holder holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holderholder'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 2.03 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.32.03, 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 2.32.03, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5this Agreement, take (or permit any Subsidiary of the Company 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 2.32.03, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure to file sRights;
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 and in Subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination consolidation, other change or other change, issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company Corporation and the Rights Agent shall have authority authority, with the 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 Company 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), (d) and (fd), 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 Company 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 Company 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 Company 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 3.13.2, 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 shares securities other than Common Shares, thereafter the number of such other shares 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 sharessecurities.
(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 Company 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company Corporation shall be entitled to make such reductions in each 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 Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 Company 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 Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement, Shareholder Rights Plan Agreement (Mag Silver 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 2.03 and in Subsection 3.1(a3.01(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares of the Corporation payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of of, or in exchange for existing Common Shares except as otherwise provided in this Section 2.32.03; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("“equivalent common shares"), ”) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares shares) at a price per Common Share or per equivalent common share (or, or if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares (or securities convertible into or exchangeable or exercisable for Common Shares or equivalent common shares) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(d) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, provided that, in all 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.
(de) In case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(c2.03(c)) hereof at a price per Common Share that is less than ninety (90% %) of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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.
(ef) Notwithstanding anything herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, however that any adjustments which by reason of this Subsection 2.3(e2.03(f) 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 2.03 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(e2.03(f), any adjustment required by this Section 2.3 2.03 shall be made no later than the Expiration Time.
(fg) In If as a result of an adjustment made pursuant to this Section 2.03, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive any shares of capital stock (other than Common Shares), or rightsthereafter 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 is practicable to the provisions with respect to the Common Shares contained in this Section 2.03, options or warrants and the provisions of this Agreement with respect to subscribe for or purchase the Common Shares shall apply on like terms to any such capital stockother shares.
(h) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, 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 at 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 adjusted Exercise Price, the respective number of Rights and/or securities Common Shares, as the case may be, purchasable from time to time hereunder 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 Company and the Rights Agent shall have authority with the immediately prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereofsuch time, all subject to further adjustment as appropriate to provide for such adjustmentsprovided herein.
(gi) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(h2.03(j), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d2.03(c) and (f2.03(e), 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.
(hj) The Company 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 Company 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(h2.03(j), the Company 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 5.65.06, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(l) In any case in which this Section 2.3 2.03 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, provided that the Company Corporation shall deliver to such Holder holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holder's 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 2.03 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.32.03, 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 2.32.03, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5this Agreement, take (or permit any Subsidiary of the Company 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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Western Uranium & Vanadium Corp.), Shareholder Rights Plan Agreement (Western Uranium & Vanadium 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 and in Subsection 3.1(a)2.3.
(b) In the event the Company Trust shall at any time after the date of this Agreement and prior to the Expiration Time,
(i) make or declare a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan;
(ii) subdivide or change the outstanding Units into a greater number of Units;
(iii) combine or change the outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of in lieu of or in exchange for existing Units 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 shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below, provided, however, that there shall be no adjustment made in the case of additional Units issued in lieu of cash distributions pursuant to the Trust’s fourth amended and restated declaration of trust dated August 2, 2012, as may be amended or supplemented from time to time.
(c) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and
(ii) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will he deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following the payment or effective date of the event referred to in Clause 2.3(b)(i), (ii), (iii) or (iv), as the case may be. 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in Clauses 2.3(h)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto.
(d) In the event the Trust shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Common Shares Units 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 Units ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Units) at a price per Common Share or per equivalent common share Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or 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 to be in effect after such record date 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 number of Common Shares Units outstanding on such record date, plus the number of Common Shares Units that the aggregate offering price of the total number of Common Shares and/or equivalent 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 he 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) Unit, and the denominator of which shall be the number of Common Shares Units outstanding on such record date, plus the number of additional Common Shares and/or equivalent common shares Units to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be he offered are initially convertible, exchangeable or exercisable). .
(e) In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares Units (or securities convertible into or exchangeable or exercisable for Common Shares Units) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(f) For the purposes of this Agreement, the granting of the right to purchase Common Shares Units (whether from treasury or otherwise) pursuant to a dividend reinvestment plan any Distribution Reinvestment Plan (so long as such right to purchase is in no case evidenced by the delivery of rights or any employee benefit, stock option or similar plans warrants) shall be deemed not to constitute an issue of rights, options or warrants by the CompanyTrust; provided, however, that, in all such cases, the right to purchase Common Shares Units is at a price per share Unit of not less than 9095% of the current market price Market Price per share Unit (determined as provided in such plans) of the Common SharesUnits.
(dg) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) Units of evidences of indebtedness or assetsindebtedness, including assets (other than cash (and other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common SharesUnits on the liquidation of the Trust), subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(d) hereof)) 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 in respect of the Rights to be in effect after such record date 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 Unit on such record date, less the fair market value (as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights), on a per share Unit basis, of the portion of the assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed and the denominator of which shall be such Market Price per Common ShareUnit. Such adjustments shall be he 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 adjusted to be the Exercise Price which would have been in effect if such record date had not riot been fixed.
(eh) 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% one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e2.3(h) 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 or RightUnit. Notwithstanding the first sentence of this Subsection 2.3(e2.3(h)), 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 Expiration TimeDate.
(fi) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares securities of capital stock the Trust (other than Common Sharesthe Units), or rights, options or warrants to subscribe for or purchase any such capital stocksecurities of the Trust, or securities convertible into or exchangeable for any such capital stocksecurities of the Trust, in a transaction referred to in Clause 2.3(b)(i) or (iv)) above, if the Board of Directors Trustees acting in good faith determines that the adjustments contemplated by Subsection Subsections 2.3(b), (d) and (g) above in connection with such transaction will not appropriately protect the interests of the Holders holders of Rights, the Board of Directors acting in good faith Trustees 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 Subsections 2.3(b), (d) and (g) above, such adjustmentsadjustment, rather than the adjustments contemplated by Subsection Subsections 2.3(b), (d) and (g) above, shall be made. The Company Subject to Subsections 5.4(c) and (d) and subject to the Rights Agent shall have authority with the prior approval of each stock exchange on which the holders of Units are listed for trading at the Common Shares or relevant time, the Holders of Rights to Trust shall amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(ij) Each Right originally issued by the Company Trust 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 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 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share Unit and the number of Common Shares 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 any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Trust may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Trust shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares 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 Company Trust shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of Common Shares; the Units;
(ii) issuance (wholly or in part for cash cash) of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units;
(iii) stock dividendsUnit distributions; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Trust to holders of its Common SharesUnits, shall not be taxable to such shareholdersunitholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 2 contracts
Sources: Unitholder Rights Plan Agreement, 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 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; , provided that failure to file s
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Cream Minerals LTD), Shareholder Rights Plan Agreement (Cream Minerals LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Units 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 2.3 and in Subsection 3.1(a)section 3.2.
(ba) In the event the Company REIT shall at any time after the Record Effective Time and prior to the Expiration Time:
(i) declare or pay make a dividend distribution on Common Shares its Units payable in Common Shares Units (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Units) other than pursuant to any regular dividend distribution reinvestment plan of made available by the Company providing for the acquisition of Common SharesREIT;
(ii) subdivide or change the then outstanding Common Shares Units into a greater number of Common SharesUnits;
(iii) consolidate combine or change the then outstanding Common Shares Units into a smaller number of Common SharesUnits; or
(iv) issue any Common Shares, Convertible Securities Units (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Units) in respect of, in lieu of or in exchange for for, existing Common Shares except Units in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the number of Units or other securities, as otherwise provided in this Section 2.3; the Exercise Price in effect case may be, issuable at the time of the record date for such dividend distribution or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, change shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares Units or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share security transfer books of the Company REIT were open, such holder would have been entitled to receive as a result of such dividenddistribution, subdivision, combination or reclassification.
(cb) In case the event the Company REIT shall at any time after the Record Effective Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares Units entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for Units (or purchase Common Shares, shares securities having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares Units ("“equivalent common shares"securities”), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares Convertible Securities or equivalent common shares securities at a price per Common Share Unit or per equivalent common share security (oror having a conversion price per Unit or per equivalent security, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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 shareapplicable) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 number of Units outstanding on such record date, less plus the fair market number of Units that the aggregate offering price of the total number of Units and/or equivalent securities so to be offered (and/or the aggregate initial conversion price of the Convertible Securities so to be offered) would purchase at such Market Price per Unit; and
(ii) the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units and/or equivalent securities to be offered for subscription or purchase (or into which the Convertible Securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value (of such consideration shall be as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the 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 in respect of the Rights shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
(c) For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any distribution reinvestment plan made available by the REIT, or any employee benefit, Unit option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the REIT; provided, however, that in all such cases the right to purchase Units is at a price per Unit of not less than 90% of the current market price per Unit (determined as provided in such plans).
(d) In case the REIT shall at any time after the Effective Time and prior to the Expiration Time fix a record date for a distribution to all holders of Units (including any such distribution made in connection with a merger in which the REIT is the continuing entity) of evidences of indebtedness or assets, including cash (other than (A) a regular periodic cash distribution or a distribution paid in Units, but including any distribution payable in securities other than Units, or (B) the issuance of Units followed by a consolidation, such that each unitholder would hold an equal number of Units immediately following such consolidation as it did prior to the issuance of such Units), or subscription rights or warrants entitling them to subscribe for or purchase Units (excluding those referred to in subsection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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 such Market Price per share basisUnit, less the fair market value (as determined in good faith by the Trustees, 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 cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Unit; and
(ii) the denominator of which shall be such Market Price per Common ShareUnit. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share Unit or Rightother security, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(e), any adjustment required by this Section 2.3 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
(ii) the Expiration Time.
(f) In If, as a result of an adjustment made pursuant to section 4.1, the event the Company holder of any Right thereafter exercised shall at become entitled to receive any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (securities other than Common Shares)Units, 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 thereafter 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 such other securities purchasable so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company 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 3.2, and the Rights Agent shall have authority with the prior approval provisions of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Units shall apply on like terms to any such adjustmentsother securities.
(g) All Rights originally issued by the REIT subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, that number of Units purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company REIT shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(b) and (f3.2(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 Units (calculated to the nearest one ten-thousandth), obtained ) determined by:
(i) multiplying:
(A) the number of such Common Shares 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.
(hi) The Company 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 Common Shares 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 Common Shares 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-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 Company 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(hsubsection 3.2(i), the Company 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 5.6section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyREIT, 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 CompanyREIT, 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 CompanyREIT, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the relevant Exercise Price per Common Share Unit and the number of Common Shares Units which were expressed in the initial Rights Certificates issued hereunder.
(lk) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company REIT may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyREIT, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyREIT, 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 REIT shall deliver to such Holder holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company REIT shall be entitled to make such reductions in each Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in its good faith judgment the Board of Directors Trustees shall determine to be advisable in order that any: :
(i) consolidation or subdivision of Common Shares; Units;
(ii) issuance wholly for cash of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units;
(iii) stock dividendsdistributions of additional Units to holders of Units; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Company REIT to holders of its Common SharesUnits, shall not be taxable to such shareholdersunitholders.
(nm) The Company REIT covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1section 6.1 or 6.4, 5.2 it will not take and 5.5, take (or not permit any Subsidiary of the Company REIT 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.
(on) 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 2.3section 3.2, the Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation TimeREIT shall, not later than the Separation Time:
(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 and cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch certificate or to cause such notice to be given, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 2 contracts
Sources: Unitholder Rights Plan Agreement, 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 and in Subsection 3.1(a)2.3.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other Shares of capital or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of capital) otherwise than pursuant to any regular optional share dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares (or other shares of capital stock or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of the Company capital) in respect of, in lieu of of, or in exchange for for, existing Common Shares except as otherwise in a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefore shall occur after the Separation Time, the securities purchasable upon exercise of 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; 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 are to be adjusted,
(v) the Exercise Price in effect at after such adjustment shall be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as Shares of capital) (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date and at a time when the share transfer books of the Company were opendividend, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold immediately thereafter as a result thereof (assuming the exercise of all such exchange or conversion rights, if any); and
(vi) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights 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 Shares issued in respect of such dividend, subdivision, combination change, consolidation or reclassification.
issuance, so that each such Common Share (cor other whole Share or security exchangeable for or convertible into a whole Share of capital) In shall have exactly one Right associated with it. If the event securities purchasable upon exercise of Rights are to be adjusted, the Company securities purchasable upon exercise of each Right after such adjustment 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 exchange, conversion or 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 upon the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. If, after the Record Time and prior to the Expiration Time, the Corporation issues any shares of its authorized capital other than Common Shares in a transaction of a type described in the first sentence of this Subsection 2.3(a), such 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 agree to amend this Agreement in order to effect such treatment. If the Corporation, at any time after the Record Time and prior to the Expiration Separation Time, issues any Common Shares otherwise than in a transaction referred to in 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 Share.
(b) If the Corporation, at any time after the Record Time fix and prior to the Separation Time, fixes a record date for the issuance making of rights, options or warrants a distribution to all holders of Common Shares of rights 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 securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right right) per 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 to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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
(ii) and of which the denominator of which shall be the number of shares 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, in a consideration part or all of which may be is in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with Board. To the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. Such adjustment shall be made successively whenever extent that any such a record date is fixed, and in the event that such rights, options rights or warrants are not so issuedissued or, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would then be in effect based upon the number of Common Shares, equivalent common shares Shares (or securities convertible into or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to a any optional dividend reinvestment plan or and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee benefitstock option, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyCorporation; provided, provided however, that, in all such casesthe case of any 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 If the event the Company shall Corporation, at any time after the Record Time and prior to the Expiration Time fix Separation Time, fixes 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend Regular Periodic Cash Dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(c2.3(a) or 2.3(b)) 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 in respect of the Rights to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying shall, subject to adjustment as provided in the penultimate sentence of Subsection 2.3(b), equal the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fractionless the fair market value 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.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the numerator payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance in the case 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so an adjustment made pursuant to be distributedSubsection 2.3(a) above; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfor the applicable dividend or distribution, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted case of an adjustment made pursuant to be the Exercise Price which would have been in effect if such record date had not been fixedsubsections 2.3(b) or (c) above.
(e) Notwithstanding anything herein to the contrary, no adjustment in to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, 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 Each adjustment made pursuant to this Section 2.3 shall be made calculated to the nearest cent or to the nearest one ten-thousandth of a Common Share or Right. Notwithstanding , as 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 Timecase may be.
(f) In All Rights originally issued by the event Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the Company shall right to purchase, 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 adjusted Exercise Price, the number of Rights and/or securities Common Shares purchasable from time to time hereunder upon exercise of Rights would be appropriate andthe Rights, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights all subject to amend this Agreement in accordance with Section 5.5 hereof, further adjustment as appropriate to provide for such adjustmentsprovided herein.
(g) Unless the Company shall have Corporation has 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), subsections 2.3(b) or (d) and (fc), 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 Shares (calculated to the nearest one ten-thousandth), ) obtained by:
(i) multiplying:
multiplying (A) the number of such Common Shares which would have been issuable upon the exercise of covered by a Right immediately prior to this adjustment; by
, 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 Company 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 immediately prior to such adjustment of the number of Rights shall become that the number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to the adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Company Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, 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 date thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than after 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 Company 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, evidencing the additional Rights to which such holders holder shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, shall cause to be distributed to such holders of record in substitution and or replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the CompanyCorporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the CompanyCorporation, the relevant 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.
(i) Each Right originally issued by the Company subsequent to Irrespective of any adjustment made to or change in the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares securities purchasable from time to time hereunder upon exercise of a Right immediately prior the Rights, the Rights Certificates theretofore and thereafter issued may continue to such issue, all subject to further adjustment as provided hereinexpress the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(j) If If, as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, the holder of any Right thereafter exercised Exercised shall become entitled to receive any shares securities other than Common Shares, thereafter the number of such other shares 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 may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3, 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other sharessecurities.
(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 requires that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, provided however, that the Company Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(ol) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon the exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(i) prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) file with the Rights Agent and with the each transfer agent for the Common Shares Shares, a certificate specifying the particulars copy of such adjustment or changecertificate; and
(iiiii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch 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 2 contracts
Sources: Rights Agreement, Rights 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 and in Subsection 3.1(a)Article 3.
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
Time (i) declare or pay a dividend on Common its Voting Shares and Variable Voting Shares payable in Common Voting Shares or Variable Voting Shares (or Convertible Securities Securities) other than pursuant to any regular mandatory or optional share dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
program, (ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
shares, (iii) consolidate combine or change the then outstanding Common Voting Shares and Variable Voting Shares into a smaller number of Common Shares; or
shares, or (iv) issue any Common Shares, Voting Shares or Variable Voting Shares (or Convertible Securities or other capital stock of the Company Securities) in respect of, in lieu of or in exchange for existing Common Shares except 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 as otherwise provided of the payment or effective date in this Section 2.3; the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted, (A) the Exercise Price in effect at after such adjustment will be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Voting Shares or other securitiesVariable Voting Shares, as the case may be, issuable on such date, shall be proportionately adjusted so (or other applicable securities of the Corporation) (the “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares one Voting Share or other securitiesVariable Voting Share, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were opendistribution, such holder subdivision, change, combination or issuance would have been entitled to receive hold thereafter as a result thereof, and (B) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the shares with respect to which the original Rights were associated (if they remain outstanding) and the securities of the Corporation issued in respect of such dividend, distribution, subdivision, change, consolidation, combination or reclassificationissuance, so that each such share (or other securities of the Corporation) will have exactly one Right associated with it. 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, distribution, subdivision, change, consolidation, combination or issuance would hold thereafter as a result thereof. If, after the Record Time and prior to the Expiration Time, the Corporation shall issue any securities other than Voting Shares and Variable Voting Shares in a transaction of a type described in the first sentence of this subsection 2.3(a), such securities shall be treated herein as nearly equivalent to Voting Shares and Variable Voting Shares as may be practicable and appropriate under the circumstances and, notwithstanding anything to the contrary in this Agreement, the Corporation and the Rights Agent agree to amend this Agreement in order to effect such treatment and 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. In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any Voting Shares or Variable Voting Shares otherwise than in a transaction referred to in the preceding paragraph, each such share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
(b) 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.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Voting Shares and Variable Voting Shares 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 Voting Shares or Variable Voting Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Convertible Securities) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Convertible Security having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per sharesecurity) less than 90% of the Market Price per Common Voting Share or Variable Voting Share, as the case may be, on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 number of Common Voting Shares or Variable Voting Shares, as the case may be, outstanding on such record date, plus the number of Common Voting Shares or Variable Voting Shares, as the case may be, that the aggregate offering price of the total number of Common Voting Shares and/or equivalent common shares or Variable Voting Shares, as the case may be, so to be offered (and/or 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
(ii) share, and the denominator of which shall be the number of Common Voting Shares or Variable Voting Shares, as the case may be, outstanding on such record date, plus the number of additional Common Voting Shares and/or equivalent common shares or Variable Voting Shares, as the case may be, to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights such 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Voting Shares or Variable Voting Shares (whether from treasury or otherwise) pursuant to a any 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, stock share 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, options rights or warrants by the CompanyCorporation; provided, however, that, in all such casesthe case of any dividend or interest reinvestment plan, the right to purchase Common Shares 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 Sharessuch class of shares.
(d) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the making of a distribution to all holders of Common Shares Shareholders (including any such distribution made in connection with a merger or amalgamation in which the Company Corporation is the continuing corporation or amalgamationentity) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options rights or warrants (excluding those referred to in Subsection subsection 2.3(c)) hereof at a price per Common Share that is less than 90% hereof) or Convertible Securities in respect of the Market Price per Common Share on the second Trading Day immediately preceding such record dateVoting Shares or Variable Voting Shares, the Exercise Price in respect of the Rights to be in effect after such record date in respect of the Voting Shares or Variable Voting Shares, as the case may be, 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 Voting Share or Variable Voting Share, as the case may be, on such record date, less the fair market value (as determined in good faith by the Board of Directors, 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 RightsAgent), on a per share basis, of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed or of such subscription rights or warrants applicable to a share and the denominator of which shall be such Market Price per Common Shareshare. Such 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 adjusted 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 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 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 Company Corporation shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares of capital stock securities (other than Common Voting Shares and Variable Voting Shares), or rights, options rights or warrants to subscribe for or purchase any such capital stocksecurities, or securities convertible into or exchangeable for any such capital stocksecurities, in a transaction referred to in Clause 2.3(b)(iclause (a)(i), (a)(iv), (c) or (iv)d) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bclauses (a), (c) and (d) above in connection with such transaction will not appropriately protect the interests of the Holders 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 or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(bclauses (a), (c) and (d) above, such adjustments, rather than the adjustments contemplated by Subsection 2.3(bclauses (a), (c) and (d) above, shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof5.5, as appropriate the case may be, to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) Each Right originally issued by the Company 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 Voting Shares or Variable Voting Shares, as the case may be, 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 Section 3.1, 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 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 shares.
(kh) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share share and the number of Common Shares shares which were expressed in the initial Rights Certificates issued hereunder.
(li) In any case in which this Section 2.3 shall require that an adjustment in to the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Voting Shares or Variable Voting Share and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Voting Shares or Variable Voting Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares securities (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mj) Notwithstanding anything in this Section 2.3 to the contrary, the Company Board of Directors shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine to be advisable in order that any: any (i) consolidation or subdivision of Common the Voting Shares or Variable Voting Shares; , (ii) issuance issuance, wholly or in part for cash cash, of any Common Share Voting Shares or Convertible Securities; Variable Voting Shares or securities that by their terms are convertible into or exchangeable for Voting Shares or Variable Voting Shares, (iii) stock dividends; , or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Corporation to holders of its Common SharesShareholders, shall not be taxable to such shareholdersShareholders.
(nk) The Company covenants and agrees that, after Each adjustment to the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5, take (Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent or permit any Subsidiary the nearest hundredth 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.
(o) a share. 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 Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation TimeCorporation 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 Voting Shares and Variable Voting Shares a copy of such certificate specifying 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 particulars validity of any such adjustment or change; and
(ii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s.
Appears in 2 contracts
Sources: Shareholder Rights Plan Agreement (Postmedia Network Canada 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 2.3 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
Separation Time (i) declare or pay a dividend on Common any kind of Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan such kind of the Company providing for the acquisition of Common Shares;
, (ii) subdivide any kind of outstanding Shares or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change the then combine any kind of outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common such kind of Shares, Convertible Securities or other capital stock of (x) the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the applicable Exercise Price in effect at the time of the record date for after such dividend or of the effective date of adjustment will be equal to such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at a time when adjustment divided by the share transfer books number of the Company were open, such Shares including any fractional shares in lieu of which such holder received cash (the “Expansion Factor”) that a holder of one such Share immediately prior to such dividend, subdivision or combination would have been entitled to receive hold thereafter as a result thereof and (y) each Class A Right or Class B Right, as applicable, held prior to such adjustment will become that number of Class A Rights or Class B Rights, as applicable, equal to the Expansion Factor, and the adjusted number of Class A Rights or Class B Rights, as applicable, will be deemed to be distributed among such Shares with respect to which the original Class A Rights or Class B Rights, as applicable, were associated (if they remain outstanding) and the shares issued in respect of such dividend, subdivisionsubdivision or combination, combination so that each such Share will have exactly one Class A Right or reclassification.
(c) Class B Rights, as applicable, associated with it. Each adjustment made pursuant to this paragraph shall be made as of the payment or effective date for the applicable dividend, subdivision or combination. In the event that the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix issue any Shares otherwise than in a record date for transaction referenced in the issuance preceding paragraph, each Class A Ordinary Share and Preferred Share so issued (other than any Class A Ordinary Shares issued upon the exercise or exchange of rightsany Right) shall automatically have one new Class A Right associated with it and each Class B Ordinary Share so issued (other than any Class B Ordinary Shares issued upon the exercise or exchange of any Right) shall automatically have one new Class B Right associated with it, options or warrants to all holders of Common Shares entitling them (for a period expiring within 45 calendar days after which Right in each case shall be evidenced by the certificate representing 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesthe Share shall be uncertificated, having a conversion, exchange or exercise price, including such Right shall be evidenced by the price required to be paid to purchase such convertible or exchangeable security or right per share) less than 90% registration of the Market Price per Common issue of such Share on in the second Trading Day immediately preceding such record date, register of members of the Exercise Price to be Company and the confirmation thereof provided for in effect after such record date Section 2.02). Rights shall be determined issued by multiplying the Exercise Price Company in effect immediately prior to such record date by a fraction:
(i) the numerator respect of which 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 and/or equivalent common shares so to be offered (and/or the aggregate initial conversion, exchange are issued 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith sold by the Board of Directors, whose determination shall be described in a statement filed with Company after the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. 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, or if issued, are not exercised prior Separation Time only to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 extent provided in such plans) of the Common SharesSection 5.03.
(db) In the event that the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date issue or distribute any securities or assets in respect of, in lieu of or in exchange 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular pursuant to any non-extraordinary periodic cash dividend or a dividend paid solely in Common Shares) whether by dividend, but in a reclassification or recapitalization (including any dividend payable in securities other than Common Sharessuch transaction involving a merger, consolidation, scheme or arrangement or statutory share exchange), subscription rightsor otherwise, 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares)make such adjustments, or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stockif any, 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 applicable Exercise Price, number of Rights and/or securities or other property purchasable upon exercise of Rights would as the Board, in its sole discretion, may deem to be appropriate andunder the circumstances, notwithstanding Subsection 2.3(b), such adjustments, rather than and the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate necessary to provide for such adjustments.
(gc) Unless Each adjustment to the Company 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), (d) and (f), each Right outstanding immediately prior pursuant to the making of such adjustment this Section 2.04 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 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 Rightcent. 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(o) Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.04, the Company 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 applicable Shares a copy of such certificate. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or statement therein contained and shall have no duty or liability with respect to, and shall not be deemed to have knowledge of, any adjustment or any such event unless and until it shall have received such a certificate.
(d) Rights Certificates shall represent the right to purchase the securities purchasable under the terms of this Agreement, including any adjustment or change in the securities purchasable upon exercise of the Rights is made Rights, even though such certificates may continue to express the securities purchasable at any the time after the Separation Time pursuant to this Section 2.3, the Company 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 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 to give, notice issuance of the particulars of such adjustment or change to Holders of the initial Rights who request a copy; provided that failure to file sCertificates.
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 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 and in Subsection 3.1(a)2.3.
(ba) Adjustment to Exercise Price upon changes to share capital. In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities) other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition issue of Common SharesShares or such exchangeable or convertible securities to holders of Common Shares in lieu of but not in an amount which exceeds the value of regular periodic cash dividends;
(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; Shares or;
(iv) issue any Common Shares, Convertible Securities Shares (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities) in respect of, in lieu of or in exchange for existing Common Shares Shares, except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other changereclassification, and the number and kind of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number and kind of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. 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 3.1 shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 3.1 hereof. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment 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; and
(vi) each Right held prior to such adjustment will 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 shares issued 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 of such dividend, subdivision, combination change, consolidation or reclassification.
(c) In the event the Company shall at any time issuance. If, after the Record Time and prior to the Expiration Time fix a record date for Time, the issuance Corporation shall issue any shares of rights, options or warrants to all holders of capital stock other than Common Shares entitling them in a transaction of a type described in Clause 2.3(a)(i) or (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Sharesiv), shares having the same rights, privileges, restrictions and conditions of such capital stock shall be treated herein as nearly equivalent to Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price as may be paid by delivery of consideration, part or all of which may be in a form other than cash, practicable and appropriate under the value of such consideration shall be as determined in good faith by circumstances and the Board of Directors, whose determination shall be described in a statement filed with Corporation and the Rights Agent and shall be binding on the Rights Agent and the Holders of Rightsagree to amend this Agreement in order to effect such treatment. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares of capital stock (other Common Shares otherwise 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 this 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f2.3(a), 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 Share so issued shall automatically have one new Right associated with it, 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 shall be evidenced by the relevant Exercise Price in effect immediately after certificate representing such adjustment of the relevant Exercise Priceassociated Common Share.
(h) 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
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 2.3.
(a) In the event the Trust shall at any time after the date of this Agreement,
(i) declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan;
(ii) subdivide or change the outstanding Units into a greater number of Units;
(iii) combine or change the outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of, in lieu of or in exchange for existing Units 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 shall be adjusted as of the payment or effective date in Subsection 3.1(arespect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and
(vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it 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. 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust 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.
(b) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Common Shares Units 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 Units ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Units) at a price per Common Share or per equivalent common share Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or 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 to be in effect after such record date 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 number of Common Shares Units outstanding on such record date, plus the number of Common Shares Units that the aggregate offering price of the total number of Common Shares and/or equivalent 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, 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) Unit, and the denominator of which shall be the number of Common Shares Units outstanding on such record date, plus the number of additional Common Shares and/or equivalent 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, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares Units (or securities convertible into or exchangeable or exercisable for Common Shares Units) actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan any Distribution Reinvestment Plan or any employee benefit, stock option Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced by the delivery of rights or similar plans warrants) shall be deemed not to constitute an issue of rights, options or warrants by the CompanyTrust; provided, however, that, in all 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 Market Price per share Unit (determined as provided in such plans) of the Common SharesUnits.
(dc) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) Units of evidences of indebtedness or assetsindebtedness, including assets (other than cash (and other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common SharesUnits on the liquidation of the Trust), subscription rights, options or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b) hereof)) 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 in respect of the Rights to be in effect after such record date 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 Unit on such record date, less the fair market value (as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights), on a per share Unit basis, of the portion of the assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed and the denominator of which shall be such Market Price per Common ShareUnit. Such 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 adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(ed) 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% one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 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 or RightUnit. Notwithstanding the first sentence of this Subsection 2.3(esubsection 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 Expiration TimeDate.
(fe) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares securities of capital stock the Trust (other than Common Sharesthe Units), or rights, options or warrants to subscribe for or purchase any such capital stocksecurities of the Trust, or securities convertible into or exchangeable for any such capital stocksecurities of the Trust, in a transaction referred to in Clause 2.3(b)(iclause 2.3(a)(i) or (iv)) above, if the Board of Directors Trustees acting in good faith determines that the adjustments contemplated by Subsection 2.3(bsubsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the Holders holders of Rights, the Board of Directors acting in good faith Trustees 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(bsubsections 2.3(a), (b) and (c) above, such adjustmentsadjustment, rather than the adjustments contemplated by Subsection 2.3(bsubsections. Subsections 2.3(a), (b) and (c) above, shall be made. The Company Subject to subsections 5.4(b) and (c) and subject to the Rights Agent shall have authority with the prior approval of the holders of stock exchange on which the Common Shares or Units are listed for trading at the Holders of Rights to relevant time, the Trust shall amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) Each Right originally issued by the Company Trust 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 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 or Section 3.1, 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 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 shares.
(kg) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share Unit and the number of Common Shares Units which were expressed in the initial Rights Certificates issued hereunder.
(lh) In any case in which this Section 2.3 shall require that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Trust may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Trust shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mi) Notwithstanding anything in this Section 2.3 to the contrary, the Company Trust shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of Common Shares; the Units,
(ii) issuance (wholly or in part for cash cash) of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units,
(iii) stock dividends; or Unit distributions, or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Trust to holders of its Common SharesUnits, shall not be taxable to such shareholdersUnitholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Unitholders 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 and in Subsection 3.1(a)Article 3.
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
Time (i) declare or pay a dividend on Common its Voting Shares and Variable Voting Shares payable in Common Voting Shares or Variable Voting Shares (or Convertible Securities Securities) other than pursuant to any regular mandatory or optional share dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
program, (ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
shares, (iii) consolidate combine or change the then outstanding Common Voting Shares and Variable Voting Shares into a smaller number of Common Shares; or
shares, or (iv) issue any Common Shares, Voting Shares or Variable Voting Shares (or Convertible Securities or other capital stock of the Company Securities) in respect of, in lieu of or in exchange for existing Common Shares except 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 as otherwise provided of the payment or effective date in this Section 2.3; the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted, (A) the Exercise Price in effect at after such adjustment will be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Voting Shares or other securitiesVariable Voting Shares, as the case may be, issuable on such date, shall be proportionately adjusted so (or other applicable securities of the Corporation) (the “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares one Voting Share or other securitiesVariable Voting Share, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were opendistribution, such holder subdivision, change, combination or issuance would have been entitled to receive hold thereafter as a result thereof, and (B) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the shares with respect to which the original Rights were associated (if they remain outstanding) and the securities of the Corporation issued in respect of such dividend, distribution, subdivision, change, consolidation, combination or reclassificationissuance, so that each such share (or other securities of the Corporation) will have exactly one Right associated with it. 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, distribution, subdivision, change, consolidation, combination or issuance would hold thereafter as a result thereof. If, after the Record Time and prior to the Expiration Time, the Corporation shall issue any securities other than Voting Shares and Variable Voting Shares in a transaction of a type described in the first sentence of this subsection 2.3(a), such securities shall be treated herein as nearly equivalent to Voting Shares and Variable Voting Shares as may be practicable and appropriate under the circumstances and, notwithstanding anything to the contrary in this Agreement, the Corporation and the Rights Agent agree to amend this Agreement in order to effect such treatment and 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. In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any Voting Shares or Variable Voting Shares otherwise than in a transaction referred to in the preceding paragraph, each such share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share.
(b) 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.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Voting Shares and Variable Voting Shares 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 Voting Shares or Variable Voting Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Convertible Securities) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Convertible Security having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per sharesecurity) less than 90% of the Market Price per Common Voting Share or Variable Voting Share, as the case may be, on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 number of Common Voting Shares or Variable Voting Shares, as the case may be, outstanding on such record date, plus the number of Common Voting Shares or Variable Voting Shares, as the case may be, that the aggregate offering price of the total number of Common Voting Shares and/or equivalent common shares or Variable Voting Shares, as the case may be, so to be offered (and/or 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
(ii) share, and the denominator of which shall be the number of Common Voting Shares or Variable Voting Shares, as the case may be, outstanding on such record date, plus the number of additional Common Voting Shares and/or equivalent common shares or Variable Voting Shares, as the case may be, to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights such 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Voting Shares or Variable Voting Shares (whether from treasury or otherwise) pursuant to a any 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, stock share 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, options rights or warrants by the CompanyCorporation; provided, however, that, in all such casesthe case of any dividend or interest reinvestment plan, the right to purchase Common Shares 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 Sharessuch class of shares.
(d) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the making of a distribution to all holders of Common Shares Shareholders (including any such distribution made in connection with a merger or amalgamation in which the Company Corporation is the continuing corporation or amalgamationentity) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options rights or warrants (excluding those referred to in Subsection subsection 2.3(c)) hereof at a price per Common Share that is less than 90% hereof) or Convertible Securities in respect of the Market Price per Common Share on the second Trading Day immediately preceding such record dateVoting Shares or Variable Voting Shares, the Exercise Price in respect of the Rights to be in effect after such record date in respect of the Voting Shares or Variable Voting Shares, as the case may be, 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 Voting Share or Variable Voting Share, as the case may be, on such record date, less the fair market value (as determined in good faith by the Board of Directors, 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 RightsAgent), on a per share basis, of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed or of such subscription rights or warrants applicable to a share and the denominator of which shall be such Market Price per Common Shareshare. Such 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 adjusted 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 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 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 Company Corporation shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares of capital stock securities (other than Common Voting Shares and Variable Voting Shares), or rights, options rights or warrants to subscribe for or purchase any such capital stocksecurities, or securities convertible into or exchangeable for any such capital stocksecurities, in a transaction referred to in Clause 2.3(b)(iclause (a)(i), (a)(iv), (c) or (iv)d) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bclauses (a), (c) and (d) above in connection with such transaction will not appropriately protect the interests of the Holders 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 or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(bclauses (a), (c) and (d) above, such adjustments, rather than the adjustments contemplated by Subsection 2.3(bclauses (a), (c) and (d) above, shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof5.5, as appropriate the case may be, to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) Each Right originally issued by the Company 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 Voting Shares or Variable Voting Shares, as the case may be, 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 Section 3.1, 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 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 shares.
(kh) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share share and the number of Common Shares shares which were expressed in the initial Rights Certificates issued hereunder.
(li) In any case in which this Section 2.3 shall require that an adjustment in to the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Voting Shares or Variable Voting Share and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Voting Shares or Variable Voting Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares securities (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mj) Notwithstanding anything in this Section 2.3 to the contrary, the Company Board of Directors shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine to be advisable in order that any: any (i) consolidation or subdivision of Common the Voting Shares or Variable Voting Shares; , (ii) issuance issuance, wholly or in part for cash cash, of any Common Share Voting Shares or Convertible Securities; Variable Voting Shares or securities that by their terms are convertible into or exchangeable for Voting Shares or Variable Voting Shares, (iii) stock dividends; , or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Corporation to holders of its Common SharesShareholders, shall not be taxable to such shareholdersShareholders.
(nk) The Company covenants and agrees that, after Each adjustment to the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5, take (Exercise Price made pursuant to this Section 2.3 shall be calculated to the nearest cent or permit any Subsidiary the nearest hundredth 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.
(o) a share. 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 Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation TimeCorporation 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 Voting Shares and Variable Voting Shares a copy of such certificate specifying 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 particulars validity of any such adjustment or change; and.
(iil) giveNotwithstanding anything else contained herein, or cause the Rights Agent to give, notice consolidation of the particulars Voting Shares and Variable Voting Shares on October 5, 2016 shall be deemed to not have resulted in an adjustment to the Exercise Price pursuant to the terms of such adjustment Section 2.3 or change to Holders Section 3.1 and, for greater certainty, each outstanding share as of the Rights who request a copy; provided that failure to file sdate hereof has exactly one Right associated with it.
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 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 2.3 3.2 and in Subsection 3.1(aSection 4.1(a).
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Shares or Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("“equivalent common shares"”), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(cSection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 3.2(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 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(eSection 3.2(e), any adjustment required by this Section 2.3 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 (ii) the Expiration Time.
(f) In If as a result of an adjustment made pursuant to Section 4.1, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this Section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(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 respective number of Common Shares, as the case may be, purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hSection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dSections 3.2(b) and (fd), 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.
(hi) The Company 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 Company 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(hSection 3.2(i), the Company 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 5.66.4, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(lk) In any case in which this Section 2.3 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, 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 Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.33.2, 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 Securitiessecurities 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 2.33.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(om) Whenever an adjustment to the Exercise Price or a change in the securities purchasable purchaseable upon exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.33.2, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copyRights; provided that failure to file ssuch 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 1 contract
Sources: Shareholder Rights Plan Agreement (Richmont Mines 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 and in Subsection 3.1(a)) .
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Western Copper & Gold 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 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
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 and in Subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination consolidation, other change or other change, issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the making of a distribution to all holders of Common Common Shares (including any such distribution made in connection with a merger in which the Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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.Time.
(f) In the event the Company 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 Company Corporation and the Rights Agent shall have authority authority, with the 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 Company 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), (d) and (fd), 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 Company 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 Company 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 Company 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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.announcement.
(i) Each Right originally issued by the Company 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 3.13.2, 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 shares securities other than Common Shares, thereafter the number of such other shares 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 sharessecurities.
(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 Company 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company Corporation shall be entitled to make such reductions in each 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 Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 Company 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 Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file sRights
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 Common 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 2.3 and in Subsection 3.1(a)section 3.2.
(b1) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(ia) declare or pay a dividend on the Common Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities) other than pursuant to any regular optional stock dividend reinvestment plan of the Company providing for the acquisition of Common Shares;program,
(iib) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;,
(iiic) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(ivd) issue any Common Shares, Convertible Securities Shares (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities) in respect of, in lieu of or in exchange for existing Common Shares Shares, except as otherwise provided in this Section 2.3; section 3.2, the Exercise Price in effect at the time of the record date for such dividend or of for the effective date of such subdivision, combination or other changereclassification, and the number and kind of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number and kind of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share Common Share transfer books of the Company Corporation were open, such holder he would have been entitled to receive as a result by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this section 3.2 and section 4.2, the adjustment provided for in this section 3.2 shall be in addition to, and shall be made prior to, any adjustment required pursuant to section 4.2.
(c2) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares [or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ] or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
, (ia) the numerator of which 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
Share and (iib) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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.
(d3) In case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assetsindebtedness, including cash (other than a regular periodic cash 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 subscription rights, options rights or warrants ([excluding those referred to in Subsection 2.3(csubsection 3.2(2)) 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 in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
, (ia) 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
distributed or of such subscription rights or warrants applicable to a Common Share and (iib) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(e4) Notwithstanding anything herein to the contrary, no adjustment in to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(4) 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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(4), any adjustment required by this Section 2.3 section 3.2 shall be made no later than the Expiration Timeearlier of (i) two years from the date of the transaction which mandates such adjustment and (ii) the Termination Date.
(f5) In If as a result of an adjustment made pursuant to section 4.1 or 4.2, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive any shares of capital stock (other than Common Shares, thereafter the number of such other shares so receivable upon exercise of any Right and the 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 subsections 3.2(1), or rights(2), options or warrants (3), (4), (5), (6)) (7), (8) and (9), and the provisions of this Agreement with respect to subscribe for or purchase the Common Shares shall apply on like terms to any such capital stock, or securities convertible into or exchangeable for other shares.
(6) All Rights originally issued by the Corporation subsequent to 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 adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Rights and/or securities Common Shares purchasable from time to time hereunder upon exercise of Rights would be appropriate andthe Rights, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights all subject to amend this Agreement in accordance with Section 5.5 hereof, further adjustment as appropriate to provide for such adjustmentsprovided herein.
(g7) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(8), upon each adjustment of an the Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(2) and (f3), 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 Shares (calculated to the nearest one ten-thousandth), ) obtained by:
(ia) multiplying:
multiplying (Ax) the number of such Common Shares which would have been issuable upon the exercise of covered by a Right immediately prior to this adjustment; by
adjustment by (By) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(iib) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) 8) The Company Corporation may elect on or after the date of any adjustment of an the 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 Company Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, 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 ten days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of to the number of Rights pursuant to this Subsection 2.3(hsubsection 3.2(8), the Company 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 5.6section 7.4, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k9) 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 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.
(l10) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ or other appropriate holder an instrument evidencing such Holderholder's right to receive such additional Common Shares shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(m11) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in its their good faith judgment the Board of Directors shall determine to be advisable in order that any: any (ia) consolidation or subdivision of the Common Shares; , (iib) issuance wholly for cash of any Common Share Shares at less than the applicable Market Price, (c) issuance wholly for cash of any Common Shares or Convertible Securities; securities that by their terms are convertible into or exchangeable for Common Shares, (iiid) stock dividends; dividends or (ive) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n12) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5section 7.1 or 7.7, take (or permit any Subsidiary of the Company 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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Protection Rights Plan Agreement (Flotek Industries Inc/Cn/)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise PriceIn the event the Company shall at any time after the date of this Agreement and prior to the Separation Time (i) declare or pay a dividend on any class of Common Shares payable in Common Stock or Nonvoting Common Stock, as the number case may be, (ii) subdivide any outstanding In the event the Company shall at any time after the date of this Agreement and kind prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in 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 share (or, if the Common Shares shall be uncertificated, such Right shall be evidenced by the registration 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 and in Subsection 3.1(a).such Common Shares
(b) In the event the Company shall at any time after the Record Time date of this Agreement and prior to the Expiration Time:
(i) declare Separation Time issue or pay a dividend on Common Shares payable in Common Shares distribute any securities or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company assets in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular non-extraordinary periodic cash dividend or a dividend paid solely in Common Shares) whether by dividend, but in a reclassification or recapitalization (including any dividend payable in securities other than Common Sharessuch transaction involving a merger, consolidation or share exchange), subscription rightsor otherwise, 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares)make such adjustments, or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stockif any, 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 or other property purchasable upon exercise of Rights would as the Board of Directors of the Company, in its sole discretion, may deem to be appropriate andunder the circumstances in order to adequately protect the interests of the holders of Rights generally, notwithstanding Subsection 2.3(b), such adjustments, rather than and the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate necessary to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(ic) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 is practicable calculated 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.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(o) nearest cent. 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 and (ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment therein
(d) Rights Certificates shall represent the securities purchasable under the terms of this Agreement, including any adjustment or a change in the securities purchasable upon exercise of the Rights is made Rights, even though such certificates may continue to express the securities purchasable at any the time after the Separation Time pursuant to this Section 2.3, the Company 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 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 to give, notice issuance of the particulars of such adjustment or change to Holders of the initial Rights who request a copy; provided that failure to file sCertificates.
Appears in 1 contract
Sources: Stockholder Protection Rights Agreement (Goldman Sachs 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 2.3.
(a) In the event the Trust shall at any time after the date of this Agreement,
(i) declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan;
(ii) subdivide or change the outstanding Units into a greater number of Units;
(iii) combine or change the outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of, in lieu of or in exchange for existing Units 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 shall be adjusted as of the payment or effective date in Subsection 3.1(arespect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and
(vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it 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. 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust 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.
(b) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Common Shares Units 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 Units ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Units) at a price per Common Share or per equivalent common share Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or 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 to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to to such record date by a fraction:
(i) , the numerator of which shall be the number of Common Shares Units outstanding on such record date, plus the number of Common Shares Units that the aggregate offering price of the total number of Common Shares and/or equivalent 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, 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) Unit, and the denominator of which shall be the number of Common Shares Units outstanding on such record date, plus the number of additional Common Shares and/or equivalent 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, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares Units (or securities convertible into or exchangeable or exercisable for Common Shares Units) actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan any Distribution Reinvestment Plan or any employee benefit, stock option Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced by the delivery of rights or similar plans warrants) shall be deemed not to constitute an issue of rights, options or warrants by the CompanyTrust; provided, however, that, in all 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 Market Price per share Unit (determined as provided in such plans) of the Common SharesUnits.
(dc) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) Units of evidences of indebtedness or assetsindebtedness, including assets (other than cash (and other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common SharesUnits on the liquidation of the Trust), subscription rights, options or warrants (excluding those referred to in Subsection 2.3(csubsection 2.3(b) hereof)) 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 in respect of the Rights to be in effect after such record date 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 Unit on such record date, less the fair market value (as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall shall be binding on the Rights Agent and the Holders holders of Rights), on a per share Unit basis, of the portion of the assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed and the denominator of which shall be such Market Price per Common ShareUnit. Such 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 adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(ed) 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% one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 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 or RightUnit. Notwithstanding the first sentence of this Subsection 2.3(esubsection 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 Expiration TimeDate.
(fe) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares securities of capital stock the Trust (other than Common Sharesthe Units), or rights, options or warrants to subscribe for or purchase any such capital stocksecurities of the Trust, or securities convertible into or exchangeable for any such capital stocksecurities of the Trust, in a transaction referred to in Clause 2.3(b)(iclause 2.3(a)(i) or (iv)) above, if the Board of Directors Trustees acting in good faith determines that the adjustments contemplated by Subsection 2.3(bsubsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the Holders holders of Rights, the Board of Directors acting in good faith Trustees 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(bsubsections 2.3(a), (b) and (c) above, such adjustmentsadjustment, rather than the adjustments contemplated by Subsection 2.3(bsubsections. Subsections 2.3(a), (b) and (c) above, shall be made. The Company Subject to subsections 5.4(b) and (c) and subject to the Rights Agent shall have authority with the prior approval of the holders of stock exchange on which the Common Shares or Units are listed for trading at the Holders of Rights to relevant time, the Trust shall amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) Each Right originally issued by the Company Trust 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 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 or Section 3.1, 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 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 shares.
(kg) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share Unit and the number of Common Shares Units which were expressed in the initial Rights Certificates issued hereunder.
(lh) In any case in which this Section 2.3 shall require that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Trust may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Trust shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mi) Notwithstanding anything in this Section 2.3 to the contrary, the Company Trust shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of Common Shares; the Units,
(ii) issuance (wholly or in part for cash cash) of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units,
(iii) stock dividends; or Unit distributions, or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Trust to holders of its Common SharesUnits, shall not be taxable to such shareholdersUnitholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Unitholders 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 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
Separation Time (i) declare or pay a dividend on Common Ordinary Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Ordinary Shares;
, (ii) subdivide the outstanding Ordinary Shares or change the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change combine the then outstanding Common Ordinary Shares into a smaller number of Common Shares; or
(iv) issue any Common Ordinary Shares, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; (x) the Exercise Price in effect at after such adjustment will be equal to the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at a time when adjustment divided by the share transfer books number of the Company were open, Ordinary Shares including any fractional shares in lieu of which such holder received cash (the “Expansion Factor”) that a holder of one Ordinary Share immediately prior to such dividend, subdivision or combination would have been entitled to receive hold thereafter as a result thereof and (y) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the shares of Ordinary Shares with respect to which the original Rights were associated (if they remain outstanding) and the shares issued in respect of such dividend, subdivisionsubdivision or combination, combination so that each such Ordinary Share will have exactly one Right associated with it. Each adjustment made pursuant to this paragraph shall be made as of the payment or reclassification.
(c) effective date for the applicable dividend, subdivision or combination. In the event that the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix issue any Ordinary Shares otherwise than in a record date for transaction referenced in the issuance of rightspreceding paragraph, options or warrants to all holders of Common Shares entitling them (for a period expiring within 45 calendar days after each such record date) to subscribe for or purchase Common SharesOrdinary Share so issued shall automatically have one new Right associated with it, shares having which Right shall be evidenced by the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common certificate representing such share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesthe Ordinary Share shall be uncertificated, having a conversion, exchange or exercise price, including such Right shall be evidenced by the price required to be paid to purchase registration of such convertible or exchangeable security or right per share) less than 90% Ordinary Share in the register of members of the Market Price per Common Share on Company and the second Trading Day immediately preceding such record date, the Exercise Price to be confirmation thereof provided for in effect after such record date Section 2.2). Rights shall be determined issued by multiplying the Exercise Price Company in effect immediately prior to such record date by a fraction:
(i) the numerator respect of which shall be the number of Common Shares outstanding on such record date, plus the number of Common Ordinary 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 are issued 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith sold by the Board of Directors, whose determination shall be described in a statement filed with Company after the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. 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, or if issued, are not exercised prior Separation Time only to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 extent provided in such plans) of the Common SharesSection 5.3.
(da) In the event that the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date issue or distribute any securities or assets in respect of, in lieu of or in exchange for the making of a distribution to all holders of Common Ordinary Shares (including any such distribution made in connection with a merger in which the Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular pursuant to any non-extraordinary periodic cash dividend or a dividend paid solely in Common Ordinary Shares) whether by dividend, but in a reclassification or recapitalization (including any dividend payable in securities other than Common Sharessuch transaction involving a merger, consolidation, scheme or arrangement or statutory share exchange), subscription rightsor otherwise, 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares)make such adjustments, or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stockif any, 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 or other property purchasable upon exercise of Rights would as the Board of Directors, in its sole discretion, may deem to be appropriate andunder the circumstances, notwithstanding Subsection 2.3(b), such adjustments, rather than and the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate necessary to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(ib) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 2.4 shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable calculated 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.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(o) nearest cent. Whenever an adjustment to the Exercise Price is made 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 and (ii) promptly file with the Rights Agent and with each transfer agent for the Ordinary Shares a copy of such certificate. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or statement therein contained and shall have no duty or liability with respect to, and shall not be deemed to have knowledge of, any adjustment or any such event unless and until it shall have received such a certificate.
(c) Rights Certificates shall represent the right to purchase the securities purchasable under the terms of this Agreement, including any adjustment or change in the securities purchasable upon exercise of the Rights is made Rights, even though such certificates may continue to express the securities purchasable at any the time after the Separation Time pursuant to this Section 2.3, the Company 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 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 to give, notice issuance of the particulars of such adjustment or change to Holders of the initial Rights who request a copy; provided that failure to file sCertificates.
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 and in Subsection 3.1(a)2.3.
(ba) In the event If the Company shall at any time after the date of the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Company) other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common SharesDividend Reinvestment 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, Convertible Securities Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Company Company) in respect of, in lieu of or in exchange for existing Common 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 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 at after such adjustment will be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as capital stock) (the case may be, issuable on such date, shall be proportionately adjusted so "Expansion Factor") that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof; and
(ii) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and at 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 shares issued 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 time when the share transfer books holder of the Company were opensecurities purchasable upon exercise of one Right immediately prior to such dividend, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold thereafter as a result of such dividend, subdivision, combination change, consolidation or reclassification.
issuance. If, after the Record Time and prior to the Expiration Time, the Company shall issue any shares of capital stock other than Common Shares in a transaction of a type described in Clause 2.3(a)(i) or (c) In iv), shares of such capital stock shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the event circumstances and the Company and the Rights Agent agree to amend this Agreement in order to effect such treatment. If the Company shall at any time after the Record Time and prior to the Expiration Separation Time issue any Common Shares otherwise than in a transaction referred to in this 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 associated Common Share.
(b) If the Company shall at any time after the 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 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 so to be offered are initially convertible, exchangeable or exercisable). In case If such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that if such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan Dividend Reinvestment Plan or any employee benefit, stock option option, deferred share unit, long-term incentive or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) of evidences of indebtedness or assetsindebtedness, including cash (other than a regular periodic an annual cash dividend or a dividend paid referred to in Common SharesSection 2.3(a)(i), but including any dividend payable in securities other than Common Shares), subscription assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(b) hereof)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that if such a distribution is not so made, the Exercise Price shall be readjusted adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(ed) 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(e2.3(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 or Rightshare. Notwithstanding the first sentence of this Subsection 2.3(e2.3(d), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.earlier of:
(fi) In three years from the event date of the transaction which gives rise to such adjustment; or
(ii) the Expiration Date;
(e) If the Company shall at any time after the Record Time and prior to the Expiration 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, stock in a transaction referred to in Clause 2.3(b)(iClauses 2.3(a)(i) or (iv)) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bSubsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the Holders 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(bSubsections 2.3(a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by Subsection 2.3(bSubsections 2.3(a), (b) and (c) above, shall be made. The , subject to the prior consent of the holders of the Voting Shares or the Rights as set forth in Subsections 5.4(b) or (c) and the Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights upon receiving such consent to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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 for herein.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(kg) 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 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.
(lh) 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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mi) Notwithstanding anything contained in this Section 2.3 to the contrary, the Company shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine to be advisable advisable, in order that any: :
(i) consolidation or subdivision of Common Shares; ;
(ii) issuance (wholly or in part for cash cash) of any Common Share Shares or Convertible Securities; (iii) stock dividends; securities that by their terms are convertible into or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company to holders of its exchangeable for Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s;
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 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 2.3 and in Subsection 3.1(a)section 3.2.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common its Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Shares) other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;; or
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares, Convertible Securities Shares (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Shares) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common sharesEQUIVALENT COMMON SHARES"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Common Shares at a price per Common Share or per equivalent common share Common Share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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 shareCommon Shares) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common shares Common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which shall be the number of Common Shares outstanding on such record date, plus the number of additional Common Shares and/or equivalent common shares 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, that in all such cases, cases the right to purchase Common Shares is at a price per share of that is not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In If the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(csubsection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 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 such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(e), any adjustment required by this Section 2.3 section 3.2 shall be made no later than the earlier of (i) three years from the date of the transaction giving rise to such adjustment and (ii) the Expiration Time.
(f) In If, as a result of an adjustment made pursuant to section 4.1, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(g) All Rights 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, that 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 Company Corporation shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(i), upon each adjustment of an the Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(b) and (fd), 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 Shares (calculated to the nearest one ten-thousandth), obtained thousandth of a share) determined 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.
(hi) The Company Corporation may elect on or after the date of any adjustment of an the 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 Company 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(hsubsection 3.2(i), the Company 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 5.6section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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.
(lk) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the 29 - 28 - issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder holder a due b▇bill ▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, 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 Securitiessecurities 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 2.3section 3.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(nm) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1section 6.1, 5.2 and 5.56.2 or 6.6, take (or permit any Subsidiary of the Company 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.
(on) 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 2.33.2, the Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Time:
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 each transfer agent for the Common Shares a copy of such certificate specifying and mail a brief summary thereof to each holder of Rights. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the particulars validity of any such adjustment or change; and
(ii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s.
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 and in Subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination consolidation, other change or other change, issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company Corporation and the Rights Agent shall have authority authority, with the 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 Company 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), (d) and (fd), 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 Company 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 Company 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 Company 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 3.13.2, 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 shares securities other than Common Shares, thereafter the number of such other shares 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 sharessecurities.
(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 Company 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company Corporation shall be entitled to make such reductions in each 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 Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 Company 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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Augusta Resource 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 and in Subsection 3.1(a)2.3.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other Shares of capital or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of capital) otherwise than pursuant to any regular optional share dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares (or other shares of capital stock or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of the Company capital) in respect of, in lieu of of, or in exchange for for, existing Common Shares except as otherwise in a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefore shall occur after the Separation Time, the securities purchasable upon exercise of 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; 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 are to be adjusted,
(v) the Exercise Price in effect at after such adjustment shall be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as Shares of capital) (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date and at a time when the share transfer books of the Company were opendividend, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold immediately thereafter as a result thereof (assuming the exercise of all such exchange or conversion rights, if any); and
(vi) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights 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 Shares issued in respect of such dividend, subdivision, combination change, consolidation or reclassification.
issuance, so that each such Common Share (cor other whole Share or security exchangeable for or convertible into a whole Share of capital) In shall have exactly one Right associated with it. If the event securities purchasable upon exercise of Rights are to be adjusted, the Company securities purchasable upon exercise of each Right after such adjustment 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 exchange, conversion or 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 upon the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. If, after the Record Time and prior to the Expiration Time, the Corporation issues any shares of its authorized capital other than Common Shares in a transaction of a type described in the first sentence of this Subsection 2.3(a), such 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 agree to amend this Agreement in order to effect such treatment. If the Corporation, at any time after the Record Time and prior to the Expiration Separation Time, issues any Common Shares otherwise than in a transaction referred to in 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 Share.
(b) If the Corporation, at any time after the Record Time fix and prior to the Separation Time, fixes a record date for the issuance making of rights, options or warrants a distribution to all holders of Common Shares of rights 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 securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right right) per 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 to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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
(ii) and of which the denominator of which shall be the number of shares 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, in a consideration part or all of which may be is in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with . To the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. Such adjustment shall be made successively whenever extent that any such a record date is fixed, and in the event that such rights, options rights or warrants are not so issuedissued or, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would then be in effect based upon the number of Common Shares, equivalent common shares Shares (or securities convertible into or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to a any optional dividend reinvestment plan or and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee benefitstock option, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyCorporation; provided, provided however, that, in all such casesthe case of any 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 If the event the Company shall Corporation, at any time after the Record Time and prior to the Expiration Time fix Separation Time, fixes 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend Regular Periodic Cash Dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(c2.3(a) or 2.3(b)) 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 in respect of the Rights to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying shall, subject to adjustment as provided in the penultimate sentence of Subsection 2.3(b), equal the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fractionless the fair market value 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.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the numerator payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance in the case 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so an adjustment made pursuant to be distributedSubsection 2.3(a) above; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfor the applicable dividend or distribution, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted case of an adjustment made pursuant to be the Exercise Price which would have been in effect if such record date had not been fixedsubsections 2.3(b) or (c) above.
(e) Notwithstanding anything herein to the contrary, no adjustment in to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, 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 Each adjustment made pursuant to this Section 2.3 shall be made calculated to the nearest cent or to the nearest one ten-thousandth of a Common Share or Right. Notwithstanding , as 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 Timecase may be.
(f) In All Rights originally issued by the event Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the Company shall right to purchase, 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 adjusted Exercise Price, the number of Rights and/or securities Common Shares purchasable from time to time hereunder upon exercise of Rights would be appropriate andthe Rights, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights all subject to amend this Agreement in accordance with Section 5.5 hereof, further adjustment as appropriate to provide for such adjustmentsprovided herein.
(g) Unless the Company shall have Corporation has 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), subsections 2.3(b) or (d) and (fc), 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 Shares (calculated to the nearest one ten-thousandth), ) obtained by:
(i) multiplying:
multiplying (A) the number of such Common Shares which would have been issuable upon the exercise of covered by a Right immediately prior to this adjustment; by
, 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 Company 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 immediately prior to such adjustment of the number of Rights shall become that the number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to the adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Company Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, 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 date thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than after 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 Company 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, evidencing the additional Rights to which such holders holder shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, shall cause to be distributed to such holders of record in substitution and or replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the CompanyCorporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the CompanyCorporation, the relevant 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.
(i) Each Right originally issued by the Company subsequent to Irrespective of any adjustment made to or change in the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares securities purchasable from time to time hereunder upon exercise of a Right immediately prior the Rights, the Rights Certificates theretofore and thereafter issued may continue to such issue, all subject to further adjustment as provided hereinexpress the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(j) If If, as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, the holder of any Right thereafter exercised Exercised shall become entitled to receive any shares securities other than Common Shares, thereafter the number of such other shares 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 may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3, 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other sharessecurities.
(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 requires that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, provided however, that the Company Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(ol) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon the exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(i) prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) file with the Rights Agent and with the each transfer agent for the Common Shares Shares, a certificate specifying the particulars copy of such adjustment or changecertificate; and
(iiiii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch 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: Rights 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 section 2.3 and in Subsection subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or consolidation, other change, or issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change, or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 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 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 subsection 2.3(e), any adjustment required by this Section section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 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)subsection 2.3, such adjustments, rather than the adjustments contemplated by Subsection 2.3(b)subsection 2.3, shall be made. The Company Corporation and the Rights Agent shall have authority with the 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 section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections subsections 2.3(c), (d) and (fd), 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 Company 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 Company 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 subsection 2.3(h), the Company 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 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 section 2.3 or Section 3.1an 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 shares securities other than Common Shares, thereafter the number of such other shares securites 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 section 2.3, and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other sharessecurities.
(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 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's ’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 section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 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 section 2.3, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections sections 5.1, 5.2 and 5.5, take (or permit any Subsidiary of the Company 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 section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Platinum Group Metals LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Trust Units or other 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 and in Subsection 3.1(a).2.3:
(ba) Adjustment to Exercise Price upon changes to unit capital. In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend distribution on Common Shares the Trust Units payable in Common Shares Trust Units (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Trust Units or other securities) other than pursuant the issue of Trust Units or such exchangeable or convertible securities to any holders of Trust Units in lieu of but not in an amount which exceeds the value of regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesperiodic cash distributions;
(ii) subdivide or change the then outstanding Common Shares Trust Units into a greater number of Common SharesTrust Units;
(iii) 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, Convertible Securities Trust Units (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Trust Units or other securities) in respect of, in lieu of or in exchange for existing Common Shares Trust Units, except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend distribution or of the effective date of such subdivision, combination or other changereclassification, and the number and kind of Common Shares Trust Units or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number and kind of Common Shares Trust Units or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share Trust Unit transfer books of the Company Trust were open, such holder would have owned upon such exercise and been entitled to receive as a result by virtue of such dividenddistribution, subdivision, combination or reclassification.
(c) In the event the Company shall at any time . If, after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record dateSeparation Time, the Exercise Price to be Trust shall issue any securities other than Trust Units in effect after such record date shall be determined by multiplying the Exercise Price a transaction of a type described in effect immediately prior to such record date by a fraction:
paragraph (i) the numerator of which or (iv) above, such securities 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 and/or treated herein as nearly 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, 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 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 so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price Trust Units as may be paid by delivery of considerationpracticable and appropriate under the circumstances, part or all of which may be in a form other than cash, and the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with Trust and the Rights Agent and shall be binding on the Rights Agent and the Holders of Rightsagree to amend this Agreement in order to effect such treatment. Such adjustment shall be made successively whenever such a record date is fixed, and in the If an event that such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price occurs which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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% adjustment under both this Section 2.3 and Section 3.1 hereof, the adjustment provided for 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 in addition to, and 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)prior to, any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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 announcement3.1 hereof.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Unitholder Rights Plan Agreement (Primewest Energy Trust)
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 and in Subsection 3.1(a)2.3.
(ba) In the event the Company Veresen shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common the Shares payable in Common Shares (or other shares of Veresen or securities exchangeable for or convertible into or giving a right to acquire Shares or Convertible Securities other shares of Veresen) other than pursuant to any regular dividend reinvestment plan optional program of Veresen by which dividends may be applied to the Company providing for the acquisition purchase from Veresen of Common additional Shares;
(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, Convertible Securities Shares (or other capital stock shares of the Company Veresen or securities exchangeable for or convertible into or giving a right to acquire Shares or other shares of Veresen) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3a reclassification, amalgamation, merger, statutory arrangement or consolidation; 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 (x) the Exercise Price in effect at the time of the record date for after such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, adjustment shall be proportionately adjusted so that equal to the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at adjustment divided by the number of Shares (or other shares of Veresen) (the "Expansion Factor") that a time when the share transfer books holder of the Company were openone Share immediately prior to such dividend, such holder subdivision, change, combination or issuance would have been entitled to receive hold thereafter as a result thereof and (y) 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 allocated among the Shares with respect to which the original Rights were associated (if they remain outstanding) and the Shares issued in respect of such dividend, subdivision, change, combination or reclassificationissuance, so that each such Share (or other share of Veresen) will have exactly one Right associated with it. 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, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time Veresen shall issue any Shares other than Shares in a transaction of a type described in Section 2.3(a)(i) or (iv), such Shares shall be treated herein as nearly equivalent to Shares as may be practicable and appropriate under the circumstances and Veresen and the Rights Agent agree to amend this Agreement in order to effect, and will not consolidate with, amalgamate with or into or enter into a statutory arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment. 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. Adjustments pursuant to this Section 2.3(a) shall be made successively whenever an event referred to in this Section 2.3(a) occurs. In the event Veresen shall at any time after the Record Time and prior to the Separation Time issue any Shares otherwise than in a transaction referred to in the preceding paragraph, each such Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such Share.
(cb) In the event the Company Veresen shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance making of rights, options a distribution to all Shareholders of rights or warrants to all holders of Common Shares entitling them (for a period expiring within 45 60 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares subscribe for Shares) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right per shareShare)) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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
(ii) and of which the denominator of which 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, in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, Directors whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. For the purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury Shares or otherwise) pursuant to a any dividend or interest reinvestment plan and/or any Share purchase plan providing for the reinvestment of dividends or any interest payable on securities of Veresen and/or the investment of periodic optional payments and/or employee benefit, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyVeresen; provided, however, that, that in all such casesthe case of any dividend or interest reinvestment 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 Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Company Veresen shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) Shareholders of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(b)) 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 be adjusted in respect of the Rights to be manner set forth below. The Exercise Price in effect after such record date shall be determined by multiplying equal 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) of the portion of the assets, whose evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one Right (such determination shall to be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and holders of the Holders of Rights), on a per share basis, of the portion of the evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments 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, and subdivision, change, combination or issuance, in the event that such a distribution is not so madecase of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the Exercise Price shall be readjusted case of an adjustment made pursuant to be paragraph (b) or (c) above subject to readjustment to reverse the Exercise Price which would have been in effect same if such record date had distribution shall not been fixedbe made.
(e) In the event Veresen shall at any time after the Record Time and prior to the Expiration Time issue any shares of Veresen (other than Shares), or rights or warrants to subscribe for or purchase any such shares of Veresen, or securities convertible into or exchangeable for any such shares of Veresen, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if Veresen shall take any other action (other than the issue of 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, Veresen 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 Veresen, rather than the adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. Veresen 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) Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, Veresen 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 Shares a copy of such certificate; and
(iii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights by way of press release or by such other means as Veresen may determine. 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.
(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) 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% one per cent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 2.3(h) 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 or RightShare. Notwithstanding the first sentence of this Subsection 2.3(eSection 2.3(h), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 byearlier of:
(i) multiplying:
(A) three years from the number date of the transaction which gives rise to 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; andor
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) 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 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 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 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 Company 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 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 to be so 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 announcementExpiration Date.
(i) Each Right originally issued by the Company Veresen 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 Section 3.1, 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 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 shares.
(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 Company Veresen may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyVeresen, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyVeresen, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Veresen shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mk) Notwithstanding anything contained in this Section 2.3 to the contrary, the Company Veresen shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine determines to be advisable advisable, in order that any: :
(i) consolidation or subdivision of Common Shares; ;
(ii) issuance (wholly or in part for cash cash) of any Common Share Shares or Convertible Securities; securities that by their terms are convertible into or exchangeable for Shares;
(iii) stock dividendsdistributions; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Veresen to holders of its Common Shares, shall not be taxable to such shareholdersShareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: 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 and in Subsection 3.1(a)2.3.
(b) In the event the Company Trust shall at any time after the date of this Agreement and prior to the Expiration Time,
(i) make or declare a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan;
(ii) subdivide or change the outstanding Units into a greater number of Units;
(iii) combine or change the outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of in lieu of or in exchange for existing Units 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 shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below, provided, however, that there shall be no adjustment made in the case of additional Units issued in lieu of cash distributions pursuant to the Trust’s fourth amended and restated declaration of trust dated August 2, 2012, as may be amended or supplemented from time to time.
(c) If the Exercise Price and number of Rights outstanding are to be adjusted:
(i) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and
(ii) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following the payment or effective date of the event referred to in Clause 2.3(b)(i), (ii), (iii) or (iv), as the case may be. 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in Clauses 2.3(h)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto.
(d) In the event the Trust shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Common Shares Units 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 Units ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Units) at a price per Common Share or per equivalent common share Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or 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 to be in effect after such record date 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 number of Common Shares Units outstanding on such record date, plus the number of Common Shares Units that the aggregate offering price of the total number of Common Shares and/or equivalent 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, 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) Unit, and the denominator of which shall be the number of Common Shares Units outstanding on such record date, plus the number of additional Common Shares and/or equivalent 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). .
(e) In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares Units (or securities convertible into or exchangeable or exercisable for Common Shares Units) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(f) For the purposes of this Agreement, the granting of the right to purchase Common Shares Units (whether from treasury or otherwise) pursuant to a dividend reinvestment plan any Distribution Reinvestment Plan (so long as such right to purchase is in no case evidenced by the delivery of rights or any employee benefit, stock option or similar plans warrants) shall be deemed not to constitute an issue of rights, options or warrants by the CompanyTrust; provided, however, that, in all such cases, the right to purchase Common Shares Units is at a price per share Unit of not less than 9095% of the current market price Market Price per share Unit (determined as provided in such plans) of the Common SharesUnits.
(dg) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) Units of evidences of indebtedness or assetsindebtedness, including assets (other than cash (and other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common SharesUnits on the liquidation of the Trust), subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(d) hereof)) 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 in respect of the Rights to be in effect after such record date 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 Unit on such record date, less the fair market value (as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights), on a per share Unit basis, of the portion of the assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed and the denominator of which shall be such Market Price per Common ShareUnit. Such 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 adjusted to be the Exercise Price which would have been in effect if such record date had not riot been fixed.
(eh) 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% one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(e2.3(h) 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 or RightUnit. Notwithstanding the first sentence of this Subsection 2.3(e2.3(h)), 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 Expiration TimeDate.
(fi) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares securities of capital stock the Trust (other than Common Sharesthe Units), or rights, options or warrants to subscribe for or purchase any such capital stocksecurities of the Trust, or securities convertible into or exchangeable for any such capital stocksecurities of the Trust, in a transaction referred to in Clause 2.3(b)(i) or (iv)) above, if the Board of Directors Trustees acting in good faith determines that the adjustments contemplated by Subsection Subsections 2.3(b), (d) and (g) above in connection with such transaction will not appropriately protect the interests of the Holders holders of Rights, the Board of Directors acting in good faith Trustees 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 Subsections 2.3(b), (d) and (g) above, such adjustmentsadjustment, rather than the adjustments contemplated by Subsection Subsections 2.3(b), (d) and (g) above, shall be made. The Company Subject to Subsections 5.4(c) and (d) and subject to the Rights Agent shall have authority with the prior approval of each stock exchange on which the holders of Units are listed for trading at the Common Shares or relevant time, the Holders of Rights to Trust shall amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(ij) Each Right originally issued by the Company Trust 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 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 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share Unit and the number of Common Shares 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 any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Trust may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Trust shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares 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 Company Trust shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of Common Shares; the Units;
(ii) issuance (wholly or in part for cash cash) of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units;
(iii) stock dividendsUnit distributions; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Trust to holders of its Common SharesUnits, shall not be taxable to such shareholdersunitholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Unitholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a1) 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 and in Subsection 3.1(aSection 3.1(1).
(b2) In the event the Company Corporation shall at any time after the Record Separation Time and prior to the Expiration Time:
(ia) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination consolidation, other change or other change, issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change or reclassificationissuance.
(c3) In the event the Company Corporation shall at any time after the Record Separation Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(ia) the numerator of which 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 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, 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
(iib) the denominator of which 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 so to be offered are initially convertible, exchangeable or exercisable). .
(4) In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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 RightsHolders. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(5) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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.
(d6) In the event the Company Corporation shall at any time after the Record Separation Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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)Section 2.3(3) hereof 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 in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
(ia) 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(iib) the denominator of which shall be such Market Price per Common Share. Such 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.
(e7) 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(eSection 2.3(7) 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 or Right. Notwithstanding the first sentence of this Subsection 2.3(eSection 2.3(7), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) 8) In the event the Company Corporation shall at any time after the Record Separation 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)(iSections 2.3(2)(a) or (ivd), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bSection 2.3(2) 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(bSection 2.3(2), such adjustments, rather than the adjustments contemplated by Subsection 2.3(bSection 2.3(2), shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereofauthority, as appropriate appropriate, to provide for such adjustments.
(g9) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hSection 2.3(10), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dSections 2.3(3) and (f6), 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:
(ia) multiplying:
(Ai) the number of such Common Shares which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(Bii) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(iib) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h10) The Company 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 Company 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(hSection 2.3(10), the Company 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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.
(i11) Each Right originally issued by the Company 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.
(j12) If as a result of an adjustment made pursuant to this Section 2.3 or an authorization made pursuant to Section 3.13.2, 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 shares securities other than Common Shares, thereafter the number of such other shares 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 sharessecurities.
(k13) 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.
(l14) 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's ’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(m15) Notwithstanding anything in this Section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s;
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 section 2.3 and in Subsection subsection 3.1(a)) .
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3section ; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options or warrants (excluding those referred to in Subsection 2.3(c)subsection ) 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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) subsection 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 section 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)subsection , any adjustment required by this Section 2.3 section shall be made no later than the Expiration Time.
(f) In the event the Company 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) clause or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(b) subsection 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)subsection , such adjustments, rather than the adjustments contemplated by Subsection 2.3(b)subsection , shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 section hereof, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(h)subsection , upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d) subsections and (f), 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 Company 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 Company 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)subsection , the Company 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 5.6section , the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 section or Section 3.1section , 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 is practicable to the provisions with respect to the Common Shares contained in this Section 2.3section , and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other shares.
(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 section shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's ’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 section to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.3section , 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 2.3section , hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1sections , 5.2 and 5.5, take (or permit any Subsidiary of the Company 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 2.3section , the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file ssuch 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 1 contract
Sources: Shareholder Rights Plan Agreement (Cumberland Resources LTD)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Units 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 2.3 and in Subsection 3.1(a)section 3.2.
(ba) In the event the Company REIT shall at any time after the Record Effective Time and prior to the Expiration Time:
(i) declare or pay make a dividend distribution on Common Shares its Units payable in Common Shares Units (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Units) other than pursuant to any regular dividend distribution reinvestment plan of made available by the Company providing for the acquisition of Common SharesREIT;
(ii) subdivide or change the then outstanding Common Shares Units into a greater number of Common SharesUnits;
(iii) consolidate combine or change the then outstanding Common Shares Units into a smaller number of Common SharesUnits; or
(iv) issue any Common Shares, Convertible Securities Units (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Units) in respect of, in lieu of or in exchange for for, existing Common Shares except Units in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the number of Units or other securities, as otherwise provided in this Section 2.3; the Exercise Price in effect case may be, issuable at the time of the record date for such dividend distribution or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, change shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares Units or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share security transfer books of the Company REIT were open, such holder would have been entitled to receive as a result of such dividenddistribution, subdivision, combination or reclassification.
(cb) In case the event the Company REIT shall at any time after the Record Effective Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares Units entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for Units (or purchase Common Shares, shares securities having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares Units ("“equivalent common shares"securities”), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares Units or equivalent common shares securities at a price per Common Share Unit or per equivalent common share security (oror having a conversion price per Unit or per equivalent security, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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 shareapplicable) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 number of Units outstanding on such record date, less plus the fair market number of Units that the aggregate offering price of the total number of Units and/or equivalent securities so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Market Price per Unit; and
(ii) the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units and/or equivalent securities to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value (of such consideration shall be as determined in good faith by the Board of DirectorsREIT Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the 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 in respect of the Rights shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
(c) For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any distribution reinvestment plan made available by the REIT, or any employee benefit, Unit option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the REIT; provided, however, that in all such cases the right to purchase Units is at a price per Unit of not less than 90% of the current market price per Unit (determined as provided in such plans).
(d) In case the REIT shall at any time after the Effective Time and prior to the Expiration Time fix a record date for a distribution to all holders of Units (including any such distribution made in connection with a merger in which the REIT is the continuing entity) of evidences of indebtedness or assets, including cash (other than (A) a regular periodic cash distribution or a distribution paid in Units, but including any distribution payable in securities other than Units, or (B) the issuance of Units followed by a consolidation, such that each unitholder would hold an equal number of Units immediately following such consolidation as it did prior to the issuance of such Units), or subscription rights or warrants entitling them to subscribe for or purchase Units (excluding those referred to in subsection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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 such Market Price per share basisUnit, less the fair market value (as determined in good faith by the REIT Trustees, 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 cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Unit; and
(ii) the denominator of which shall be such Market Price per Common ShareUnit. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share Unit or Rightother security, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(e), any adjustment required by this Section 2.3 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
(ii) the Expiration Time.
(f) In If, as a result of an adjustment made pursuant to section 4.1, the event the Company holder of any Right thereafter exercised shall at become entitled to receive any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (securities other than Common Shares)Units, 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 thereafter 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 such other securities purchasable so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company 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 3.2, and the Rights Agent shall have authority with the prior approval provisions of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Units shall apply on like terms to any such adjustmentsother securities.
(g) All Rights originally issued by the REIT subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, that number of Units purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company REIT shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(b) and (f3.2(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 Units (calculated to the nearest one ten-thousandth), obtained ) determined by:
(i) multiplying:
(A) the number of such Common Shares 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.
(hi) The Company 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 Common Shares 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 Common Shares 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-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 Company 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(hsubsection 3.2(i), the Company 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 5.6section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyREIT, 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 CompanyREIT, 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 CompanyREIT, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the relevant Exercise Price per Common Share Unit and the number of Common Shares Units which were expressed in the initial Rights Certificates issued hereunder.
(lk) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company REIT may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyREIT, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyREIT, 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 REIT shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company REIT shall be entitled to make such reductions in each Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in its good faith judgment the Board of Directors REIT Trustees shall determine to be advisable in order that any: :
(i) consolidation or subdivision of Common Shares; Units;
(ii) issuance wholly for cash of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units;
(iii) stock dividendsdistributions of additional Units to holders of Units; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Company REIT to holders of its Common SharesUnits, shall not be taxable to such shareholdersunitholders.
(nm) The Company REIT covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1section 6.1 or 6.4, 5.2 it will not take and 5.5, take (or not permit any Subsidiary of the Company REIT 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.
(on) 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 2.3section 3.2, the Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation TimeREIT shall, not later than the Separation Time:
(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 and cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch certificate or to cause such notice to be given, or any defect therein, shall not affect the validity of any such adjustment or change.
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 and in Subsection 3.1(a)2.3.
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common the Shares payable in Common Shares (or other shares of the Corporation or securities exchangeable for or convertible into or giving a right to acquire Shares or Convertible Securities other shares of the Corporation) other than pursuant to any regular dividend reinvestment plan optional program of the Company providing for Corporation by which dividends may be applied to the acquisition purchase from the Corporation of Common additional Shares;
(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, Convertible Securities Shares (or other capital stock shares of the Company Corporation or securities exchangeable for or convertible into or giving a right to acquire Shares or other shares of the Corporation) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3a reclassification, amalgamation, merger, statutory arrangement or consolidation; 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 (x) the Exercise Price in effect at the time of the record date for after such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, adjustment shall be proportionately adjusted so that equal to the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at a time when adjustment divided by the share transfer books number of Shares (or other shares of the Company were openCorporation) (the "Expansion Factor") that a holder of one Share immediately prior to such distribution, such holder subdivision, change, combination or issuance would have been entitled to receive hold thereafter as a result thereof and (y) 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 allocated among the Voting Shares with respect to which the original Rights were associated (if they remain outstanding) and the Voting Shares issued in respect of or in connection with such dividenddistribution, subdivision, change, combination or reclassificationissuance (for certainty, including in respect of any concurrent distribution, subdivision, change, combination or issuance in respect of the Special Voting Shares), so that each such Voting Share (or other share of the Corporation) will have exactly one Right associated with it. lf 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time the Corporation shall issue any securities other than Shares in a transaction of a type described in Section 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Shares as may be practicable and appropriate under the circumstances and the Corporation and the Rights Agent agree to amend this Agreement in order to effect, and will not consolidate with, amalgamate with or into or enter into a statutory arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting, such treatment. 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. Adjustments pursuant to this Section 2.3(a) shall be made successively whenever an event referred to in this Section 2.3(a) occurs. In the event the Corporation shall at any time after the Record Time and prior to the Separation Time issue any Shares otherwise than in a transaction referred to in the preceding paragraph, each such Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such Share.
(cb) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance making of rights, options or warrants a distribution to all holders of Common Shares of rights or warrants entitling them (for a period expiring within 45 60 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares subscribe for Shares) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right per shareShare)) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 so to be offered, offered to holders of Shares (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) and of which the denominator of which 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 to holders of Shares (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, in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, Directors whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. For the purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury Shares or otherwise) pursuant to a dividend any dividend, distribution or interest reinvestment plan and/or any share purchase plan providing for the reinvestment of dividends, distributions or any interest payable on securities of the Corporation and/or the investment of periodic optional payments and/or employee benefit, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyCorporation; provided, however, thatthat in the case of any dividend, in all such casesdistribution or interest reinvestment 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 Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(b)) 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 be adjusted in respect of the Rights to be manner set forth below. The Exercise Price in effect after such record date shall be determined by multiplying equal 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) of the portion of the assets, whose evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one Right (such determination shall to be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and holders of the Holders of Rights), on a per share basis, of the portion of the evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments 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, and subdivision, change, combination or issuance, in the event that such a distribution is not so madecase of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the Exercise Price shall be readjusted case of an adjustment made pursuant to be paragraph (b) or (c) above subject to readjustment to reverse the Exercise Price which would have been in effect same if such record date had distribution shall not been fixedbe made.
(e) 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 Shares), or rights or warrants to subscribe for or purchase any such securities of the Corporation, or securities convertible into or exchangeable for any such securities of the Corporation, 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 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 the 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) 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 Shares a copy of such certificate; and
(iii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights by way of press release or by such other means as the Corporation may determine. 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.
(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) 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% one per cent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 2.3(h) 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 or RightShare. Notwithstanding the first sentence of this Subsection 2.3(eSection 2.3(h), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 byearlier of:
(i) multiplying:
(A) three years from the number date of the transaction which gives rise to 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; andor
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) 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 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 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 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 Company 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 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 to be so 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 announcementExpiration Date.
(i) Each Right originally issued by the Company 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 Section 3.1, 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 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 shares.
(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 Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mk) Notwithstanding anything contained in this Section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine determines to be advisable advisable, in order that any: :
(i) consolidation or subdivision of Common Shares; ;
(ii) issuance (wholly or in part for cash cash) of any Common Share Shares or Convertible Securities; securities that by their terms are convertible into or exchangeable for Shares;
(iii) stock dividendsdistributions; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholdersShareholders or shall subject such Shareholders to a lesser amount of tax.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
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 2.3.
(a) In the event the Trust shall at any time after the date of this Agreement,
(i) declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan;
(ii) subdivide or change the outstanding Units into a greater number of Units;
(iii) combine or change the outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of, in lieu of or in exchange for existing Units 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 shall be adjusted as of the payment or effective date in Subsection 3.1(arespect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and
(vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it 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. 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust 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.
(b) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Common Shares Units 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 Units ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Units) at a price per Common Share or per equivalent common share Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or 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 to be in effect after such record date 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 number of Common Shares Units outstanding on such record date, plus the number of Common Shares Units that the aggregate offering price of the total number of Common Shares and/or equivalent 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, 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) Unit, and the denominator of which shall be the number of Common Shares Units outstanding on such record date, plus the number of additional Common Shares and/or equivalent 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, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options rights or warrants are not so issued, issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares Units (or securities convertible into or exchangeable or exercisable for Common Shares Units) actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan any Distribution Reinvestment Plan or any employee benefit, stock option Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced by the delivery of rights or similar plans warrants) shall be deemed not to constitute an issue of rights, options or warrants by the CompanyTrust; provided, however, that, in all 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 Market Price per share Unit (determined as provided in such plans) of the Common SharesUnits.
(dc) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) Units of evidences of indebtedness or assetsindebtedness, including assets (other than cash (and other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common SharesUnits on the liquidation of the Trust), subscription rights, options or warrants (excluding those referred to in Subsection 2.3(csubsection Section 2.3(b) hereof)) 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 in respect of the Rights to be in effect after such record date 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 Unit on such record date, less the fair market value (as determined in good faith by the Board of DirectorsTrustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights), on a per share Unit basis, of the portion of the assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributed; and
(ii) distributed and the denominator of which shall be such Market Price per Common ShareUnit. Such 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 adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(ed) 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% one percent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection Section 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 or RightUnit. Notwithstanding the first sentence of this Subsection 2.3(esubsection Section 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 Expiration TimeDate.
(fe) In the event the Company Trust shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares securities of capital stock the Trust (other than Common Sharesthe Units), or rights, options or warrants to subscribe for or purchase any such capital stocksecurities of the Trust, or securities convertible into or exchangeable for any such capital stocksecurities of the Trust, in a transaction referred to in Clause 2.3(b)(iclause 2.3(a)(i) or (iv)) above, if the Board of Directors Trustees acting in good faith determines that the adjustments contemplated by Subsection 2.3(bsubsections Section 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the Holders holders of Rights, the Board of Directors acting in good faith Trustees 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(bsubsections Section 2.3(a), (b) and (c) above, such adjustmentsadjustment, rather than the adjustments contemplated by Subsection 2.3(bsubsections Section. Subsections 2.3(a), (b) and (c) above, shall be made. The Company Subject to subsections Section 5.4(b) and (c) and subject to the Rights Agent shall have authority with the prior approval of the holders of stock exchange on which the Common Shares or Units are listed for trading at the Holders of Rights to relevant time, the Trust shall amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) Each Right originally issued by the Company Trust 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 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 or Section 3.1, 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 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 shares.
(kg) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share Unit and the number of Common Shares Units which were expressed in the initial Rights Certificates issued hereunder.
(lh) In any case in which this Section 2.3 shall require that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Trust may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyTrust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Trust shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mi) Notwithstanding anything in this Section 2.3 to the contrary, the Company Trust shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of Common Shares; the Units,
(ii) issuance (wholly or in part for cash cash) of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units,
(iii) stock dividends; or Unit distributions, or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Trust to holders of its Common SharesUnits, shall not be taxable to such shareholdersUnitholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Unitholders 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 the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3 and in Subsection 3.1(a)section 3.
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Common Shares) other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares (or other capital stock of the Company securities 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 except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this section 3.2 and section 4.1, the adjustment provided for in this section 3.2 shall be in addition to, and shall be made prior to, any adjustment required pursuant to section 4.1.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(csubsection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(e), any adjustment required by this Section 2.3 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 (ii) the Expiration Time.
(f) In If as a result of an adjustment made pursuant to section 4.1 or 4.2, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(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 respective number of Common Shares, as the case may be, purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(b) and (fd), 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.
(hi) The Company 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 Company 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(hsubsection 3.2(i), the Company 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 5.6section 6.4, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(lk) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, 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 Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.3section 3.2, 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 Securitiessecurities 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 2.3section 3.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(nm) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5section 6.1 or 6.5, take (or permit any Subsidiary of the Company 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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Angiotech Pharmaceuticals Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Exercise Price, the number and kind of Units 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 2.3 and in Subsection 3.1(a)section 3.2.
(ba) In the event the Company REIT shall at any time after the Record Effective Time and prior to the Expiration Time:
(i) declare or pay make a dividend distribution on Common Shares its Units payable in Common Shares Units (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Units) other than pursuant to any regular dividend distribution reinvestment plan of made available by the Company providing for the acquisition of Common Shares;
(ii) REIT; subdivide or change the then outstanding Common Shares Units into a greater number of Common Shares;
(iii) consolidate Units; combine or change the then outstanding Common Shares Units into a smaller number of Common SharesUnits; or
(iv) or issue any Common Shares, Convertible Securities Units (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Units) in respect of, in lieu of or in exchange for for, existing Common Shares except Units in a reclassification, amalgamation, merger, statutory arrangement or consolidation, the number of Units or other securities, as otherwise provided in this Section 2.3; the Exercise Price in effect case may be, issuable at the time of the record date for such dividend distribution or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, change shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares Units or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share security transfer books of the Company REIT were open, such holder would have been entitled to receive as a result of such dividenddistribution, subdivision, combination or reclassification.
(cb) In case the event the Company REIT shall at any time after the Record Effective Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares Units entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for Units (or purchase Common Shares, shares securities having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares Units ("“equivalent common shares"securities”), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares UnitsConvertible Securities or equivalent common shares securities at a price per Common Share Unit or per equivalent common share security (oror having a conversion price per Unit or per equivalent security, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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 shareapplicable) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 number of Units outstanding on such record date, less plus the fair market number of Units that the aggregate offering price of the total number of Units and/or equivalent securities so to be offered (and/or the aggregate initial conversion price of the convertible securitiesConvertible Securities so to be offered) would purchase at such Market Price per Unit; and
(ii) the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units and/or equivalent securities to be offered for subscription or purchase (or into which the convertible securitiesConvertible Securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value (of such consideration shall be as determined in good faith by the Board of DirectorsREIT Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the 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 in respect of the Rights shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
(c) For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any distribution reinvestment plan made available by the REIT, or any employee benefit, Unit option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the REIT; provided, however, that in all such cases the right to purchase Units is at a price per Unit of not less than 90% of the current market price per Unit (determined as provided in such plans).
(d) In case the REIT shall at any time after the Effective Time and prior to the Expiration Time fix a record date for a distribution to all holders of Units (including any such distribution made in connection with a merger in which the REIT is the continuing entity) of evidences of indebtedness or assets, including cash (other than (A) a regular periodic cash distribution or a distribution paid in Units, but including any distribution payable in securities other than Units, or (B) the issuance of Units followed by a consolidation, such that each unitholder would hold an equal number of Units immediately following such consolidation as it did prior to the issuance of such Units), or subscription rights or warrants entitling them to subscribe for or purchase Units (excluding those referred to in subsection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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 such Market Price per share basisUnit, less the fair market value (as determined in good faith by the REIT Trustees, 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 cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Unit; and
(ii) the denominator of which shall be such Market Price per Common ShareUnit. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share Unit or Rightother security, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(e), any adjustment required by this Section 2.3 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
(ii) the Expiration Time.
(f) In If, as a result of an adjustment made pursuant to section 4.1, the event the Company holder of any Right thereafter exercised shall at become entitled to receive any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (securities other than Common Shares)Units, 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 thereafter 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 such other securities purchasable so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company 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 3.2, and the Rights Agent shall have authority with the prior approval provisions of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Units shall apply on like terms to any such adjustmentsother securities.
(g) All Rights originally issued by the REIT subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, that number of Units purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company REIT shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(b) and (f3.2(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 Units (calculated to the nearest one ten-thousandth), obtained ) determined by:
(i) multiplying:
(A) the number of such Common Shares 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.
(hi) The Company 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 Common Shares 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 Common Shares 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 Company 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(hsubsection 3.2(i), the Company 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 5.6section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyREIT, 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 CompanyREIT, 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 CompanyREIT, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares Units issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the relevant Exercise Price per Common Share Unit and the number of Common Shares Units which were expressed in the initial Rights Certificates issued hereunder.
(lk) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company REIT may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyREIT, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyREIT, 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 REIT shall deliver to such Holder holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company REIT shall be entitled to make such reductions in each Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in its good faith judgment the Board of Directors REIT Trustees shall determine to be advisable in order that any: :
(i) consolidation or subdivision of Common Shares; Units;
(ii) issuance wholly for cash of any Common Share Units or Convertible Securities; securities that by their terms are convertible into or exchangeable for Units;
(iii) stock dividendsdistributions of additional Units to holders of Units; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Company REIT to holders of its Common SharesUnits, shall not be taxable to such shareholdersunitholders.
(nm) The Company REIT covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1section 6.1 or 6.4, 5.2 it will not take and 5.5, take (or not permit any Subsidiary of the Company REIT 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.
(on) 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 2.3section 3.2, the Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation TimeREIT shall, not later than the Separation Time:
(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 and cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch certificate or to cause such notice to be given, or any defect therein, shall not affect the validity of any such adjustment or change.
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 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 2.3 3.2 and in Subsection 3.1(aSection 4.1(a).
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Shares or Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issuedissued or, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixedfixed or, or to the Exercise Price which would be in effect based upon the number of Common Shares, equivalent common shares Shares (or securities convertible into or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 case the event the Company Corporation shall at any time after the Record Time and prior to the 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 in which the Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(cSection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 3.2(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 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(eSection 3.2(e), any adjustment required by this Section 2.3 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 (ii) the Expiration Time.
(f) In If as a result of an adjustment made pursuant to Section 4.1, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this Section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(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 respective number of Common Shares, as the case may be, purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hSection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dSections Section 3.2(b) and (fdSection 3.2(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.
(hi) The Company 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 Company 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(hSection 3.2(i), the Company 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 5.66.4, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(lk) In any case in which this Section 2.3 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, 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 Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.33.2, 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 Securitiessecurities 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 2.33.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(om) Whenever an adjustment to the Exercise Price or a change in the securities purchasable purchaseable upon exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.33.2, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copyRights; provided that failure to file ssuch 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 1 contract
Sources: Shareholder Rights Plan Agreement (Mag Silver 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 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Pacific Rim 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 and in Subsection 3.1(a)2.3.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other Shares of capital or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of capital) otherwise than pursuant to any regular optional share dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares (or other shares of capital stock or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of the Company capital) in respect of, in lieu of of, or in exchange for for, existing Common Shares except as otherwise in a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefore shall occur after the Separation Time, the securities purchasable upon exercise of 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; 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 are to be adjusted,
(v) the Exercise Price in effect at after such adjustment shall be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as Shares of capital) (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date and at a time when the share transfer books of the Company were opendividend, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold immediately thereafter as a result thereof (assuming the exercise of all such exchange or conversion rights, if any); and
(vi) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights 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 Shares issued in respect of such dividend, subdivision, combination change, consolidation or reclassification.
issuance, so that each such Common Share (cor other whole Share or security exchangeable for or convertible into a whole Share of capital) In shall have exactly one Right associated with it. If the event securities purchasable upon exercise of Rights are to be adjusted, the Company securities purchasable upon exercise of each Right after such adjustment 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 exchange, conversion or 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 upon the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. If, after the Record Time and prior to the Expiration Time, the Corporation issues any shares of its authorized capital other than Common Shares in a transaction of a type described in the first sentence of this Subsection 2.3(a), such 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 agree to amend this Agreement in order to effect such treatment. If the Corporation, at any time after the Record Time and prior to the Expiration Separation Time, issues any Common Shares otherwise than in a transaction referred to in 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 Share.
(b) If the Corporation, at any time after the Record Time fix and prior to the Separation Time, fixes a record date for the issuance making of rights, options or warrants a distribution to all holders of Common Shares of rights 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 securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right right) per 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 to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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
(ii) and of which the denominator of which shall be the number of shares 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, in a consideration part or all of which may be is in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with Board. To the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. Such adjustment shall be made successively whenever extent that any such a record date is fixed, and in the event that such rights, options rights or warrants are not so issuedissued or, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would then be in effect based upon the number of Common Shares, equivalent common shares Shares (or securities convertible into or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to a any optional dividend reinvestment plan or and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee benefitstock option, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyCorporation; provided, provided however, that, in all such casesthe case of any 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 If the event the Company shall Corporation, at any time after the Record Time and prior to the Expiration Time fix Separation Time, fixes 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend Regular Periodic Cash Dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(c2.3(a) or 2.3(b)) 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 in respect of the Rights to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying shall, subject to adjustment as provided in the penultimate sentence of Subsection 2.3(b), equal the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fractionless the fair market value 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.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the numerator payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance in the case 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so an adjustment made pursuant to be distributedSubsection 2.3(a) above; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfor the applicable dividend or distribution, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted case of an adjustment made pursuant to be the Exercise Price which would have been in effect if such record date had not been fixedsubsections 2.3(b) or (c) above.
(e) Notwithstanding anything herein to the contrary, no adjustment in to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, 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 Each adjustment made pursuant to this Section 2.3 shall be made calculated to the nearest cent or to the nearest one ten-thousandth of a Common Share or Right. Notwithstanding , as 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 Timecase may be.
(f) In All Rights originally issued by the event Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the Company shall right to purchase, 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 adjusted Exercise Price, the number of Rights and/or securities Common Shares purchasable from time to time hereunder upon exercise of Rights would be appropriate andthe Rights, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights all subject to amend this Agreement in accordance with Section 5.5 hereof, further adjustment as appropriate to provide for such adjustmentsprovided herein.
(g) Unless the Company shall have Corporation has 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), subsections 2.3(b) or (d) and (fc), 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 Shares (calculated to the nearest one ten-thousandth), ) obtained by:
(i) multiplying:
multiplying (A) the number of such Common Shares which would have been issuable upon the exercise of covered by a Right immediately prior to this adjustment; by
, 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 Company 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 immediately prior to such adjustment of the number of Rights shall become that the number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to the adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Company Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, 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 date thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than after 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 Company 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, evidencing the additional Rights to which such holders holder shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, shall cause to be distributed to such holders of record in substitution and or replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the CompanyCorporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the CompanyCorporation, the relevant 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.
(i) Each Right originally issued by the Company subsequent to Irrespective of any adjustment made to or change in the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares securities purchasable from time to time hereunder upon exercise of a Right immediately prior the Rights, the Rights Certificates theretofore and thereafter issued may continue to such issue, all subject to further adjustment as provided hereinexpress the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(j) If If, as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, the holder of any Right thereafter exercised Exercised shall become entitled to receive any shares securities other than Common Shares, thereafter the number of such other shares 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 may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3, 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other sharessecurities.
(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 requires that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, provided however, that the Company Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(ol) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon the exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(i) prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) file with the Rights Agent and with the each transfer agent for the Common Shares Shares, a certificate specifying the particulars copy of such adjustment or changecertificate; and
(iiiii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch 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 2.3 and in Subsection 3.1(a)Article 3.
(ba) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Company) other than pursuant to any regular optional stock dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(ii) subdivide or change all of the then outstanding Common Shares into a greater number of Common Shares;
(iii) consolidate or change all of the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares, Convertible Securities Shares (or other capital stock securities exchangeable for or convertible into or giving a right to acquire Common Shares or other securities of the Company Company) in respect of, in lieu of or in exchange for all of the existing outstanding Common 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 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 at after such adjustment will be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as capital stock) (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date dividend, subdivision, change, consolidation or issuance would hold thereafter as a result thereof; and
(ii) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and at 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 shares issued 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 time when the share transfer books holder of the Company were opensecurities purchasable upon exercise of one Right immediately prior to such dividend, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold thereafter as a result of such dividend, subdivision, combination change, consolidation or reclassificationissuance. If, after the Record Time and prior to the Expiration Time, the Company shall issue any shares in its capital other than Common Shares in a transaction of a type described in Clause 2.3(a)(i) or (iv), such shares shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Company and the Rights Agent agree to amend this Agreement in order to effect such treatment. If the Company at any time after the Record Time and prior to the Separation Time issue any Common Shares otherwise than in a transaction referred to in this Subsection 2.3(a), each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be represented and evidenced by the certificate representing such associated Common Share.
(cb) In the event If the Company shall at any time after the Record Time and prior to the Expiration Time fix fixes a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan Dividend Reinvestment Plan or any employee benefit, stock option or similar plans plan shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the Expiration Time fix fixes 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assetsindebtedness, including cash (other than a regular periodic an annual cash dividend or a dividend paid referred to in Common SharesClause 2.3(a)(i), but including any dividend payable in securities other than Common Shares), subscription assets or rights, options or warrants (excluding those referred to in Subsection 2.3(c2.3(b) hereof)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights), on a per share basis, of the portion of the cash, assets, evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(ed) 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(e2.3(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 or Rightshare. Notwithstanding the first sentence of this Subsection 2.3(e2.3(d), any adjustment required by this Section 2.3 shall be made no later than the earlier of:
(i) four years from the date of the transaction which gives rise to such adjustment; or
(ii) the Expiration TimeDate.
(fe) In the event that the Company shall at any time after the Record Time and prior to the Expiration Time issue issues any shares of in its capital stock (other than Common Shares), or rights, options or warrants to subscribe for or purchase any such capital stockshares, or securities convertible into or exchangeable for any such capital stock, stock in a transaction referred to in Clause 2.3(b)(iClauses 2.3(a)(i) or (iv)) above, if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bSubsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the Holders 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(bSubsections 2.3(a), (b) and (c) above, such adjustments, rather than the adjustments contemplated by Subsection 2.3(bSubsections 2.3(a), (b) and (c) above, shall be made. The Subject to the prior consent of the holders of the Voting Shares or the Rights as set forth in Subsections 5.4(b) or (c), the Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, 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) Unless the Company shall have exercised its election election, as provided in Subsection 2.3(h2.3(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d2.3(b) and (f2.3(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, as the case may be (calculated to the nearest one ten-thousandth), Shares obtained by:
(ia) multiplying:
(Ai) the he number of such Common Shares which would have been issuable upon the exercise of covered by a Right immediately prior to this such adjustment; by
(Bii) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Priceadjustment; and
(iib) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Priceadjustment.
(hi) 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 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 the 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 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 Subsection 2.3(h2.3(i), the Company 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 5.65.5, 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 so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 requires 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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mk) Notwithstanding anything contained in this Section 2.3 to the contrary, the Company shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine to be advisable advisable, in order that any: :
(i) consolidation or subdivision of Common Shares; ;
(ii) issuance (wholly or in part for cash cash) of any Common Share Shares or Convertible Securities; securities that by their terms are convertible into or exchangeable for Common Shares;
(iii) stock dividends; or 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.
(n) The Company 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 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.
(ol) 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 Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timeshall:
(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 each transfer agent for the Common Shares a certificate specifying the particulars copy of such adjustment certificate and mail a brief summary thereof to each holder of Rights who requests a copy. Failure to file such certificate or change; and
(ii) giveto cause such notice to be given as aforesaid, or cause the Rights Agent to giveany defect therein, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Silvercorp Metals Inc)
Adjustments to Exercise Price; Number of Rights. (a) The Subject to Section 5.21, 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 and in Subsection 3.1(a)2.3.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other Shares of capital or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of capital) otherwise than pursuant to any regular optional share dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares (or other shares of capital stock or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of the Company capital) in respect of, in lieu of of, or in exchange for for, existing Common Shares except as otherwise provided in this Section 2.3; a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securitiesRights outstanding, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into the payment or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, having a conversion, exchange or exercise price, including effective date therefor shall occur after 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 the second Trading Day immediately preceding such record dateSeparation Time, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 madeadjusted in the manner set forth below. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company shall have exercised its election as provided in Subsection 2.3(h), upon each adjustment of If an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d) and (f), 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 event occurs which would have been issuable upon the exercise of a Right immediately prior to require an adjustment under both 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 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 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 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 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 and Subsection 2.3(h3.1(a), the Company 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 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 to be so distributed shall be issued, executed and countersigned in the manner adjustment 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 be in addition to, and shall be made prior to, any adjustment in required under Subsection 3.1(a) . If 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 of the and 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 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 Company shall be entitled to make such reductions in each 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 Rights are 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timeadjusted:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
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 and in Subsection 3.1(a)2.3.
(b) In the event that the Company shall Fund at any time after the Record Time and prior to the Expiration Time:
(i) declare declares or pay pays a dividend distribution on Common Shares the Units payable in Common Shares Units (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Units) other than pursuant to any regular dividend distribution reinvestment plan of the Company providing for the acquisition of Common Sharesplan;
(ii) subdivide subdivides or change changes the then outstanding Common Shares Units into a greater number of Common SharesUnits;
(iii) consolidate consolidates or change changes the then outstanding Common Shares Units into a smaller number of Common SharesUnits; or
(iv) issue issues any Common Shares, Convertible Securities Units (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Units) in respect of, in lieu of of, or in exchange for existing Common Shares Units, except as otherwise provided in this Section 2.3; , then
(A) the Exercise Price shall be adjusted so that the Exercise Price in effect at after such adjustment will be equal to the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at adjustment divided by the number of Units (the "ADJUSTMENT FACTOR") that a time when the share transfer books holder of the Company were openone Unit immediately prior to such distribution, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold thereafter as a result thereof (assuming the exercise of all such exchange or conversion rights, if any); and
(B) in a case to which clause (ii) or (iii) applies or if clause (i) or (iv) applies to an issue of securities made after the Separation Time, the number of Rights outstanding shall be adjusted so that each Right held prior to such adjustment will become that number of Rights equal to the Adjustment Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the units issued in respect of such dividenddistribution, subdivision, combination change, consolidation or reclassificationissuance, so that each such Unit will have exactly one Right associated with it. In the event the Fund shall at any time after the Record Time and prior to the Separation Time issue any Units otherwise than in a transaction referred to in the preceding paragraph, each such Unit so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such Unit.
(c) In the event that the Company shall Fund at any time after the Record Time and prior to the Expiration Time fix fixes a record date for the issuance making of rights, options or warrants a distribution to substantially all holders of Common Shares Units of rights 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 Units ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares subscribe for Units) at a price per Common Share or per equivalent common share Unit (or, if in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesUnits, having a conversion, exchange or exercise price, price per unit (including the price required to be paid to purchase such convertible or exchangeable security or right per shareright)) less than 90% 90 percent of the Market Price per Common Share Unit on the second Trading Day immediately preceding such record date, the Exercise Price to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares Units outstanding on such record date, date plus the number of Common Shares that Units which the aggregate offering price of the total number of Common Shares and/or equivalent 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, 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) Unit and of which the denominator of which shall be the number of Common Shares Units outstanding on such record date, date plus the number of additional Common Shares and/or equivalent common shares Units 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 consideration, in a consideration part or all of which may will be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with . To the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event extent that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted on the expiration thereof to the Exercise Price which would have been in effect if such record date had not been fixed, or to the Exercise Price which would then be in effect based upon on the number of Common Shares, equivalent common shares Units (or securities convertible into or exchangeable or exercisable for Common Shares Units) actually issued upon the exercise of such rights, 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 units or otherwise) pursuant to a dividend any distribution reinvestment plan and/or any unit purchase plan providing for the reinvestment of distributions or any interest payable on securities of the Fund 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 by the Fund) shall not be deemed not to constitute an issue of rights, options rights or warrants by the CompanyFund; provided, however, that, in all such casesthe case of any distribution reinvestment plan or unit purchase plan, the right to purchase Common Shares Units is at a price per share unit of not less than 90% 90 percent of the current market price per share unit (determined as provided in accordance with such plans) of the Common SharesUnits.
(d) In the event that the Company shall Fund at any time after the Record Time and prior to the Expiration Time fix fixes a record date for the making of a distribution to substantially all holders of Common Shares (including any such distribution made in connection with a merger in which the Company is the continuing corporation or amalgamation) Units of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend Regular Periodic Cash Distribution or a dividend distribution paid in Common Shares, Units but including any dividend distribution payable in securities other than Common Sharesa distribution referred to in Subsection 2.3(b)(i) or 2.3(b)(iv), subscription rights, options ) or rights or warrants entitling them to subscribe for or purchase Units (or securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Units) at a price per Unit (or, in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units, having a conversion, exchange or exercise price per unit (including the price required to be paid to purchase such convertible or exchangeable security or right)) less than 90 percent of the Market Price per Unit on such record date (excluding those rights or warrants 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 in respect of the Rights to be in effect after such record date shall be determined by multiplying equal to 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, 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, cash, assets, subscription rights, options rights or warrants so to be distributeddistributed applicable to a Unit.
(e) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the record or effective date for the applicable distribution, subdivision, change, consolidation or issuance, in the case of an adjustment made pursuant to Subsection 2.3(b); and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfor the applicable distribution or distribution, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted case of an adjustment made pursuant to be the Exercise Price which would have been in effect if such record date had not been fixed.
Subsection 2.3(c) or (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 this 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(ed), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event that the Company Fund shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares units of capital stock (other than Common SharesUnits), or rights, options rights or warrants to subscribe for or purchase any such capital stockunits of capital, or securities convertible into or exchangeable for any such capital stockunits of capital, in a transaction referred to in Clause Clauses 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection Subsections 2.3(b), (c) and (d) in connection with such transaction will not appropriately protect the interests of the Holders 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 Subsections 2.3(b), (c) and (d), such adjustments, rather than the adjustments contemplated by Subsection Subsections 2.3(b), (c) and (d), shall be made. The Company Fund and the Rights Agent and Strategic Management shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) 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(g) 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 Unit or a Right, as the case may be.
(h) All Rights originally issued by the Fund subsequent to any adjustment made to an 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 the Rights, all subject to further adjustment as provided herein.
(i) Unless the Company Fund shall have exercised its election election, as provided in Subsection 2.3(h2.3(j), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d) and (fd), 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), Units obtained by:
(i) multiplying:
multiplying (A) the number of such Common Shares which would have been issuable upon the exercise of Units covered by a Right immediately prior to this adjustment; by
, 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.
(hj) The Company Strategic Management on behalf of the Fund may elect on prior to 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 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 Common Shares 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 the 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 Company Strategic Management 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(h2.3(j), the Company Fund 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 5.65.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyStrategic Management, 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 CompanyStrategic Management , new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the CompanyFund, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares securities issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore and thereafter issued may continue to express the Exercise Price per Common Share Unit and the number of Common Shares Units so issuable 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 an Exercise Price be made effective as of a record date for a specified event, the Company Strategic Management may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares Units and other securities of the CompanyFund, if any, issuable upon such exercise over and above the number of Common Shares Units and other securities of the CompanyFund, 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 Strategic Management shall deliver or cause to be delivered to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares 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 Company Strategic Management shall be entitled to make such reductions in each 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: any (i) subdivision or consolidation or subdivision of Common Shares; the Units, (ii) issuance wholly for cash of any Common Share or Convertible Securities; Units at less than the applicable Market Price, (iii) issuance wholly for cash of any Units or securities that by their terms are exchangeable for or convertible into or give a right to acquire Units, (iv) stock dividends; distributions or (ivv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Fund to holders of its Common SharesUnits, subject to applicable taxation laws, shall not be taxable to such shareholdersunitholders.
(n) The Company Fund covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5Section 5.1 or 5.4, take (or permit any Subsidiary or successor entity of the Company Strategic Management 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) 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.
(p) 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 Company Strategic Management shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares Units a certificate specifying the particulars of such adjustment or change; and
(ii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch 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: Unitholder Protection Rights Agreement (Strategic Energy 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 section 2.3 and in Subsection subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend distribution on Common Shares common shares payable in Common Shares or Convertible Securities common shares other than pursuant to any regular dividend distribution reinvestment plan of the Company Corporation providing for the acquisition of Common Sharescommon shares;
(ii) subdivide or change the then outstanding Common Shares common shares into a greater number of Common Sharescommon shares;
(iii) consolidate or change the then outstanding Common Shares common shares into a smaller number of Common Sharescommon shares; or
(iv) issue any Common Sharescommon shares, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares common shares except as otherwise provided in this Section section 2.3; the Exercise Price in effect at the time of the record date for such dividend distribution or of the effective date of such subdivision, combination consolidation, other change or other changeissuance, and the number of Common Shares common shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares common shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share common shares transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividenddistribution, subdivision, combination consolidation or reclassificationother change or issuance.
(c) In the event the Company Corporation shall at any time after the Record Time time and prior to the Expiration Time fix a record date for of the issuance of rights, options or warrants to all holders of Common Shares common shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Common Shares, common shares (or securities having the same rights, privileges, restrictions and conditions as Common Shares common shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares common shares or equivalent common shares at a price per Common Share common share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares common shares or equivalent 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) less than 90% of the Market Price per Common Share common share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 number of Common Shares common shares outstanding on such record date, plus the number of Common Shares common shares that the aggregate offering price of the total number of Common Shares 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, including the price required to be paid to purchase such convertible or exchangeable securities or rights) would purchase at such Market Price per Common Sharecommon share; and
(ii) the denominator of which shall be the number of Common Shares common shares outstanding on such record date, plus the number of additional Common Shares 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board board of Directorsdirectors, 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 RightsHolders. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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 Sharescommon shares, equivalent common shares or securities convertible convertible, into or exchangeable or exercisable for Common Shares common shares actually issued upon the exercise of such rights, options or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares common shares (whether from treasury or otherwise) pursuant to a dividend distribution reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; Corporation, provided, however, that, in all such cases, the right to purchase Common Shares common shares is at a price per common share of not less than 90% of the current market price per common share (determined as provided in such plans) of the Common Sharescommon shares.
(d) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the making of a distribution to all holders of Common Shares common shares (including any such distribution made in connection with a merger in which the Company Corporation is the continuing corporation entity or an amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Sharescommon shares, but including any dividend distribution payable in securities other than Common Sharescommon shares), ; or subscription rights, options or warrants (excluding those referred to in Subsection subsection 2.3(c)) hereof at a price per Common Share common share that is less than 90% of the Market Price per Common Share common share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 common share on such record date, less the fair market value (as determined in good faith by the Board board of Directorsdirectors, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Sharecommon share. Such 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 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 section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share common share or Right. Notwithstanding the first sentence of this Subsection subsection 2.3(e), any adjustment required by this Section section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time issue any shares securities in the capital of capital stock the Corporation (other than Common Sharescommon shares), or rights, options or warrants to subscribe for or purchase any such securities in the capital stockof the Corporation, or securities convertible into or exchangeable for any such capital stocksecurities, in a transaction referred to in Clause clause 2.3(b)(i) or (iv), if the Board board of Directors directors acting in good faith determines that the adjustments contemplated by Subsection subsection 2.3(b) in connection with such transaction will not appropriately protect the interests of the Holders the board of Rights, the Board of Directors 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 subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection subsection 2.3(b), shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereofsection 5.5, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections subsections 2.3(c), ) or (d) and (f), 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 Sharescommon shares, as the case may be (calculated to the nearest one ten-ten- thousandth), obtained by:
(i) multiplying:
(A1) the number of such Common Shares common shares which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B2) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii3) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) The Company 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 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 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 Company 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 subsection 2.3(h), the Company 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 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company Corporation subsequent to any adjustment made to the Exercise Price hereunder pursuant to this Agreement shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares 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 hereinin this Agreement.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1section 2.3, the holder Holder of any Right thereafter exercised shall become entitled to receive any shares securities other than Common Sharescommon shares, thereafter the number of such other shares 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 common shares contained in this Section section 2.3, and the provisions of this Agreement with respect to the Common Shares common shares shall apply on like terms to any such other sharessecurities.
(k) Irrespective of any adjustment or change in the Exercise Price or the number of Common Shares 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 common share and the number of Common Shares common shares which were expressed in the initial Rights Certificates issued hereunderunder this Agreement.
(l) In any case in which this Section 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 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 common shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares common shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; , provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional Common Shares common shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding anything in this Section section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section section 2.3, as and to the extent that in its good faith judgment the Board board of Directors directors shall determine to be advisable in order that any: (i) consolidation or subdivision of Common Sharescommon shares; (ii) issuance wholly for cash of any Common Share common share or Convertible Securities; (iii) stock dividendsdistributions in common shares; or (iv) issuance of rights, options or warrants referred to in this Section section 2.3, hereafter made by the Company Corporation to holders of its Common Sharescommon shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections sections 5.1, 5.2 5,2 and 5.5, take (or permit any Subsidiary of the Company 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 section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(i) file with the Rights Agent and with the transfer agent for the Common Shares common shares a certificate specifying the particulars of such adjustment or change; and
(ii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; ;
(iii) provided that failure to file ssuch certificate or cause such notice to be given as aforesaid, or any defect therein, shall not a
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 section 2.3 and in Subsection subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or consolidation, other change, or issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change, or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options or warrants (excluding those referred to in Subsection 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 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 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 subsection 2.3(e), any adjustment required by this Section section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 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)subsection 2.3, such adjustments, rather than the adjustments contemplated by Subsection 2.3(b)subsection 2.3, shall be made. The Company Corporation and the Rights Agent shall have authority with the 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 section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections subsections 2.3(c), (d) and (fd), 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 Company 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 Company 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 subsection 2.3(h), the Company 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 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 Section 3.1section 2.3, 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 is practicable to the provisions with respect to the Common Shares contained in this Section 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.
(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 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's ’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 section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 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 section 2.3, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections sections 5.1, 5.2 and 5.5, take (or permit any Subsidiary of the Company 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 section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file ssuch c
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (International Tower Hill Mines LTD)
Adjustments to Exercise Price; Number of Rights. (a1) 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 and in Subsection 3.1(aSection 3.1(1).
(b2) In the event the Company Corporation shall at any time after the Record Separation Time and prior to the Expiration Time:
(ia) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination consolidation, other change or other change, issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change or reclassificationissuance.
(c3) In the event the Company Corporation shall at any time after the Record Separation Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction:
(ia) the numerator of which 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 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, 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
(iib) the denominator of which 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 so to be offered are initially convertible, exchangeable or exercisable). .
(4) In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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 RightsHolders. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(5) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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.
(d6) In the event the Company Corporation shall at any time after the Record Separation Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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)Section 2.3(3) hereof 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 in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction:
(ia) 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(iib) the denominator of which shall be such Market Price per Common Share. Such 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.
(e7) 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(eSection 2.3(7) 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 or Right. Notwithstanding the first sentence of this Subsection 2.3(eSection 2.3(7), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) 8) In the event the Company Corporation shall at any time after the Record Separation 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)(iSections 2.3(2)(a) or (ivd), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bSection 2.3(2) 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(bSection 2.3(2), such adjustments, rather than the adjustments contemplated by Subsection 2.3(bSection 2.3(2), shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereofauthority, as appropriate appropriate, to provide for such adjustments.
(g9) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hSection 2.3(10), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dSections 2.3(3) and (f6), 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:
(ia) multiplying:
(Ai) the number of such Common Shares which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(Bii) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(iib) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h10) The Company 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 Company 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(hSection 2.3(10), the Company 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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.
(i11) Each Right originally issued by the Company 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.
(j12) If as a result of an adjustment made pursuant to this Section 2.3 or an authorization made pursuant to Section 3.13.2, 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 shares securities other than Common Shares, thereafter the number of such other shares 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 sharessecurities.
(k13) 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.
(l14) 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's ’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(m15) Notwithstanding anything in this Section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each 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 Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n16) The Company 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 Company 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.
(o17) 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 Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(ia) 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
(iib) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file ssuch certificate or cause such notice to
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Crystallex International 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 and in Subsection 3.1(a)) .
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Pacific Rim 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 and in Subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 Company 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 Company 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 Company 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 Section 3.1, 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 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 shares.
(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 Company 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holder's ’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 Company Corporation shall be entitled to make such reductions in each 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 Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 Company 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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file sparticula
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 and in Subsection 3.1(a)2.03.
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other capital stock of the Company (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock of the Company) other than pursuant to any regular optional stock dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares or other capital stock of the Company (or other securities exchangeable for or convertible into or giving a right to acquire Common Shares or other capital stock of the Company) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; 2.03, 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 an event occurs which would require an adjustment under both this Section 2.03 and paragraph 3.01(a), the adjustment provided for in this Section 2.03 shall be in addition to, and shall be made prior to, any adjustment required under paragraph 3.01(a). If the Exercise Price and number of Rights outstanding are to be adjusted:
(A) the Exercise Price in effect at after such adjustment will be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as capital stock) (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date and at a time when the share transfer books of the Company were opendividend, such holder subdivision, change, combination or issuance would have been entitled to receive hold thereafter as a result thereof; and
(B) each Right held prior to such adjustment will 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 shares issued in respect of such dividend, subdivision, change, combination or reclassificationissuance, 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, combination or issuance would hold thereafter as a result thereof. If, after the Record Time but prior to the Expiration Time, the Company issues any securities (other than Common Shares) in a transaction of a type similar to any of the transactions relating to Common Shares described in paragraphs 2.03(b)(i) or (iv) such securities shall be treated herein as nearly equivalent to Common Shares as may be practicable and appropriate under the circumstances and the Company and the Rights Agent shall amend this Agreement in order to effect such treatment; provided that no such amendment may materially adversely affect the interests of the holders of the Rights generally. If an event occurs which would require an adjustment under both this Section 2.03 and Section 3.01, the adjustment provided for in this Section 2.03 shall be in addition to, and shall be made prior to, any adjustment required under Section 3.01.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance making of rights, options or warrants a distribution to all holders of Common Shares of rights 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 Common. Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right right) per share) share less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying will equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:,
(i) the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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 SharePrice; and
(ii) the denominator of which 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares Shares (or securities convertible into into, or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, 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 any (i) dividend or interest reinvestment plan or (ii) any Common 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 (iii) employee benefit, stock option 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 not to constitute an issue of rights, options rights or warrants by the Company; provided, however, that, in all such casesthe case of any dividend or interest 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 Market Price per share (determined as provided in such plans) of the Common Shares.
(d) In the event the Company shall at any time after the Record Time and prior to the Expiration 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 in which the Company is the continuing corporation or amalgamation) of evidences of indebtedness indebtedness, cash or assets, including cash assets (other than a regular periodic cash dividend or a dividend paid referred to in Common Shares, paragraph 2.03(b) but including any dividend payable in securities other than Common Shares), subscription assets or rights, options or warrants (excluding those referred to in Subsection 2.3(cparagraph 2.03(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 in respect of the Rights to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying will equal 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, whose determination shall be described in a statement filed with Directors of the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights), on a per share basis, Company) of the portion of the assets, evidences of indebtedness, cash, assets, subscription rights, options rights or warrants so to be distributeddistributed applicable to the securities purchasable upon exercise of one Right.
(e) Each adjustment made pursuant to this Section 2.03 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 2.03(a); and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfor the applicable dividend or distribution, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted case of an adjustment made pursuant to be the Exercise Price which would have been in effect if such record date had not been fixed.
paragraphs 2.03(c) or (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 this 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(ed), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In Subject to the prior consent of the holders of Voting Shares or Rights obtained as set forth in paragraphs 5.05(b) or 5.05(c), as applicable, in the event the Company shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares of capital stock (other than Common Shares), or rights, options rights or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stock, stock in a transaction referred to in Clause 2.3(b)(isubparagraphs 2.03(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 2.3(bparagraphs 2.03(b), (c) and (d) in connection with such transaction will not appropriately protect the interests of the Holders holders of Rights, the Board of Directors acting in good faith may from time to time determine what other adjustments to the Exercise Price, number of Rights and/or or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(bparagraphs 2.03(b), (c) and (d), such adjustments, rather than the adjustments contemplated by Subsection 2.3(bparagraphs 2.03(b), (c) and (d), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless Notwithstanding anything herein to the Company shall have exercised its election as provided in Subsection 2.3(h)contrary, upon each no adjustment of an to the Exercise Price shall be required unless such adjustment (including any prior adjustments which have been carried forward and not given effect to) would require an increase or a decrease of at least 1% in the Exercise Price, provided that any adjustment which is not made as a result of the calculations made this paragraph 2.03(g) shall be carried forward and taken into account in Subsections 2.3(c), (d) and (f), each Right outstanding immediately prior any subsequent adjustment. Each adjustment to the making of such adjustment Exercise Price made pursuant to this Section 2.03 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 cent or to the nearest ten-thousandth), obtained bythousandth of a share. Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.03 the Company shall:
(i) multiplying:
(A) the number of such Common Shares which would have been issuable upon the exercise of promptly prepare a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to certificate setting forth such adjustment and a brief statement of the relevant Exercise Price; facts accounting for such adjustment, and
(ii) dividing promptly file with the product so obtained by Rights Agent and with each transfer agent for the relevant Exercise Price in effect immediately after Common Shares a copy of such adjustment certificate and mail a brief summary thereof to each holder of the relevant Exercise PriceRights.
(h) 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.13.01, the holder of any Right thereafter exercised shall become entitled to receive any shares securities 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 is practicable to the provisions with respect to the Common Shares contained in this Section 2.3paragraphs 2.03(b), (c), (d), (e), (f), (g), (i), (j) and (k), and the provisions of this Agreement with respect to the Common Shares and shall apply on like terms to any such other sharessecurities.
(ki) Irrespective of All Rights originally issued by the Company subsequent to any adjustment or change in the made to an Exercise Price or hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares issuable purchasable from time to time hereunder upon the exercise of the Rights, the Rights Certificate theretofore and thereafter issued may continue all subject to express the Exercise Price per Common Share and the number of Common Shares which were expressed in the initial Rights Certificates issued hereunderfurther adjustment as provided herein.
(lj) In any case in which this Section 2.3 2.03 shall require that an adjustment in the 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 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 a due b▇▇▇ or other holder an appropriate instrument evidencing such Holder's holder’s right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mk) Notwithstanding anything in this Section 2.3 2.03 to the contrary, the Company shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.32.03, as and to the extent that in its their good faith judgment the Board of Directors shall determine to be advisable advisable, in order that any: any subdivision or consolidation of the Common Shares, issuance (iwholly or in part for cash) consolidation or subdivision of Common Shares or securities that by their terms are exchangeable for or convertible into or giving a right to acquire Common Shares; (ii) issuance wholly for cash of any Common Share , stock dividends or Convertible Securities; (iii) stock dividends; or (iv) issuance of rights, options or warrants referred to in this Section 2.32.03, hereafter made by the Company to holders of its Common Shares, subject to applicable taxation laws, shall not be taxable to such shareholders.
(nl) The Company covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5, 5.01 or 5.05 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.
(om) Whenever an Irrespective of any adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights, the Rights is made Certificates theretofore and thereafter issued may continue to express the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(n) If the Company shall at any time after the Separation Record Time pursuant to this Section 2.3, the Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than earlier of the Separation Time:
(i) file with Time and the Rights Agent and with the transfer agent for the Expiration Time issue any Common Shares otherwise than in a transaction referred to in paragraph 2.03(b) each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate specifying the particulars of representing such adjustment or change; and
(ii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file sshare.
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 and in Subsection 3.1(a)2.3.
(ba) In the event the Company Veresen shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend distribution on Common the Shares payable in Common Shares (or other shares of Veresen or securities exchangeable for or convertible into or giving a right to acquire Shares or Convertible Securities other shares of Veresen) other than pursuant to any regular dividend reinvestment plan optional program of Veresen by which distributions may be applied to the Company providing for the acquisition purchase from Veresen of Common additional Shares;
(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, Convertible Securities Shares (or other capital stock shares of the Company Veresen or securities exchangeable for or convertible into or giving a right to acquire Shares or other shares of Veresen) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3a reclassification, amalgamation, merger, statutory arrangement or consolidation; 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 (x) the Exercise Price in effect at the time of the record date for after such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, adjustment shall be proportionately adjusted so that equal to the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at adjustment divided by the number of Shares (or other shares of Veresen) (the "Expansion Factor") that a time when the share transfer books holder of the Company were openone Share immediately prior to such distribution, such holder subdivision, change, combination or issuance would have been entitled to receive hold thereafter as a result thereof and (y) 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 allocated among the Shares with respect to which the original Rights were associated (if they remain outstanding) and the Shares issued in respect of such dividenddistribution, subdivision, change, combination or reclassificationissuance, so that each such Share (or other share of Veresen) will have exactly one Right associated with it. 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 distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time Veresen shall issue any Shares other than Shares in a transaction of a type described in Section 2.3(a)(i) or (iv), such Shares shall be treated herein as nearly equivalent to Shares as may be practicable and appropriate under the circumstances and Veresen and the Rights Agent agree to amend this Agreement in order to effect, and will not consolidate with, amalgamate with or into or enter into a statutory arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment. 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. Adjustments pursuant to this Section 2.3(a) shall be made successively whenever an event referred to in this Section 2.3(a) occurs. In the event Veresen shall at any time after the Record Time and prior to the Separation Time issue any Shares otherwise than in a transaction referred to in the preceding paragraph, each such Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such Share.
(cb) In the event the Company Veresen shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance making of rights, options a distribution to all Shareholders of rights or warrants to all holders of Common Shares entitling them (for a period expiring within 45 60 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares subscribe for Shares) at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right per shareShare)) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to shall be adjusted in the manner set forth below. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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
(ii) and of which the denominator of which 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, in a consideration part or all of which may shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, Directors whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of Rights. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. For the purposes of this Agreementparagraph (b), the granting of the right to purchase Common Shares (whether from treasury Shares or otherwise) pursuant to a dividend any distribution or interest reinvestment plan and/or any Share purchase plan providing for the reinvestment of distributions or any interest payable on securities of Veresen and/or the investment of periodic optional payments and/or employee benefit, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyVeresen; provided, however, that, that in all such casesthe case of any distribution or interest reinvestment 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 Share (determined as provided in such plans) of the Common Shares.
(dc) In the event the Company Veresen shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) Shareholders of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend distribution or a dividend distribution paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(cSection 2.3(b)) 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 be adjusted in respect of the Rights to be manner set forth below. The Exercise Price in effect after such record date shall be determined by multiplying equal 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) of the portion of the assets, whose evidences of indebtedness, rights or warrants so to be distributed applicable to each of the securities purchasable upon exercise of one Right (such determination shall to be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and holders of the Holders of Rights), on a per share basis, of the portion of the evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments 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, and subdivision, change, combination or issuance, in the event that such a distribution is not so madecase of an adjustment made pursuant to paragraph (a) above; and
(ii) the record date for the applicable distribution, in the Exercise Price shall be readjusted case of an adjustment made pursuant to be paragraph (b) or (c) above subject to readjustment to reverse the Exercise Price which would have been in effect same if such record date had distribution shall not been fixedbe made.
(e) In the event Veresen shall at any time after the Record Time and prior to the Expiration Time issue any shares of Veresen (other than Shares), or rights or warrants to subscribe for or purchase any such shares of Veresen, or securities convertible into or exchangeable for any such shares of Veresen, in a transaction referred to in clause (a)(i) or (a)(iv) above, or if Veresen shall take any other action (other than the issue of 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, Veresen 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 Veresen, rather than the adjustments contemplated by paragraphs (a), (b) and (c) above, shall be made. Veresen 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) Whenever an adjustment to the Exercise Price is made pursuant to this Section 2.3, Veresen 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 Shares a copy of such certificate; and
(iii) cause notice of the particulars of such adjustment or change to be given to the holders of the Rights by way of press release or by such other means as Veresen may determine. 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.
(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) 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% one per cent in the Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 2.3(h) 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 or RightShare. Notwithstanding the first sentence of this Subsection 2.3(eSection 2.3(h), any adjustment required by this Section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 byearlier of:
(i) multiplying:
(A) three years from the number date of the transaction which gives rise to 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; andor
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(h) 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 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 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 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 Company 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 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 to be so 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 announcementExpiration Date.
(i) Each Right originally issued by the Company Veresen 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 Section 3.1, 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 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 shares.
(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 Company Veresen may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyVeresen, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyVeresen, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Veresen shall deliver to such Holder a due b▇▇▇ or other holder an appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(mk) Notwithstanding anything contained in this Section 2.3 to the contrary, the Company Veresen shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in its their good faith judgment the Board of Directors shall determine determines to be advisable advisable, in order that any: :
(i) consolidation or subdivision of Common Shares; ;
(ii) issuance (wholly or in part for cash cash) of any Common Share Shares or Convertible Securities; securities that by their terms are convertible into or exchangeable for Shares;
(iii) stock dividendsdistributions; or or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Company Veresen to holders of its Common Shares, shall not be taxable to such shareholdersShareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
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 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 2.3 and in Subsection 3.1(a)section 3.2.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common its Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Shares) other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;; or
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares, Convertible Securities Shares (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Shares) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common sharesCOMMON SHARES"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Common Shares at a price per Common Share or per equivalent common share Common Share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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 shareCommon Shares) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common shares Common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which shall be the number of Common Shares outstanding on such record date, plus the number of additional Common Shares and/or equivalent common shares 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options rights or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, that in all such cases, cases the right to purchase Common Shares is at a price per share of that is not less than 90% of the current market price per share (determined as provided in such plans) of the Common Shares.
(d) In If the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(csubsection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 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 such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(esubsection 3.2(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 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(esubsection 3.2(e), any adjustment required by this Section 2.3 section 3.2 shall be made no later than the earlier of (i) three years from the date of the transaction giving rise to such adjustment and (ii) the Expiration Time.
(f) In If, as a result of an adjustment made pursuant to section 4.1, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(g) All Rights 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, that 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 Company Corporation shall have exercised its election as provided in Subsection 2.3(hsubsection 3.2(i), upon each adjustment of an the Exercise Price as a result of the calculations made in Subsections 2.3(c), (dsubsections 3.2(b) and (fd), 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 Shares (calculated to the nearest one ten-thousandth), obtained thousandth of a share) determined 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.
(hi) The Company Corporation may elect on or after the date of any adjustment of an the 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 Company 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(hsubsection 3.2(i), the Company 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 5.6section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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.
(lk) In any case in which this Section 2.3 section 3.2 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder holder a due b▇bill ▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, 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 Securitiessecurities 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 2.3section 3.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(nm) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1section 6.1, 5.2 and 5.56.2 or 6.6, take (or permit any Subsidiary of the Company 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.
(on) 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 2.33.2, the Company shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Time:
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 each transfer agent for the Common Shares a copy of such certificate specifying and mail a brief summary thereof to each holder of Rights. Failure to file such certificate or cause such summary to be mailed as aforesaid, or any defect therein, shall not affect the particulars validity of any such adjustment or change; and
(ii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s.
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 and in Subsection 3.1(a).
(b) In the event that the Company shall at any time after the Record Time and prior to the Expiration Time:
Separation Time (i) declare or pay a dividend on the Common Shares Stock payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
Stock, (ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;
Stock or (iii) consolidate or change combine the then outstanding Common Shares Stock into a smaller number of shares of Common Shares; or
Stock, (ivx) issue any Common Shares, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at effect after such event will be equal to the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at a time when event divided by the share transfer books number of the Company were openshares of Common Stock, including any fractional shares in lieu of which such holder received cash (the “Expansion Factor”), that a holder of one share of Common Stock immediately prior to such dividend, subdivision or combination would have been entitled to receive hold thereafter as a result thereof, (y) each Right held prior to such event will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the shares of Common Stock with respect to which the original Rights were associated (if they remain outstanding) and the shares issued in respect of such dividend, subdivisionsubdivision or combination, combination so that each such share of Common Stock will have exactly one Right associated with it and (z) the number of one one-thousandths of a share of Preferred Stock purchasable after such event upon proper exercise of each Right will be equal to the number of one one-thousandths of a share of Preferred Stock so purchasable immediately prior to such event divided by the Expansion Factor. Each adjustment made pursuant to this paragraph shall be made as of the payment or reclassification.
(c) effective date for the applicable dividend, subdivision or combination. In the event that the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company shall at any time after the Record Time and prior to the Expiration Separation Time issue any shares of capital stock (other Common Stock otherwise 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 the preceding paragraph, each such share of Common Stock so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share (iv)or, if the Board Common Stock shall be uncertificated, such Right shall be evidenced by the registration of Directors acting in good faith determines that such Common Stock on the adjustments contemplated by Subsection 2.3(b) in connection with such transaction will not appropriately protect the interests stock transfer books 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement confirmation thereof provided for in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company shall have exercised its election as provided in Subsection 2.3(h2.2), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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 in respect of shares 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 Stock that are issued or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 sold by the Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company shall promptly and in any event, where such change or adjustment occurs prior only to the Separation Time, not later than the Separation Time:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; extent provided that failure to file sin Section 5.3.
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 section 2.3 and in Subsection subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options or warrants (excluding those referred to in Subsection 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 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 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 subsection 2.3(e), any adjustment required by this Section section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 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)subsection 2.3, such adjustments, rather than the adjustments contemplated by Subsection 2.3(b)subsection 2.3, shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 section 5.4 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections subsections 2.3(c), (d) and (f), 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 Company 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 Company 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 subsection 2.3(h), the Company 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 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 section 2.3 or Section 3.1section 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 is practicable to the provisions with respect to the Common Shares contained in this Section 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.
(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 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due bbill or other a▇▇▇ or other appropriate ▇▇priate 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 section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 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 section 2.3, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections sections 5.1, 5.2 and 5.5, take (or permit any Subsidiary of the Company 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 section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file ssuch certificate or cause such
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Olympus Pacific Minerals 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 2.03 and in Subsection 3.1(a3.01(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of of, or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; 2.03, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares shares) at a price per Common Share or per equivalent common share (or, or if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of DirectorsBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would be in effect based upon on the number of Common Shares, equivalent common shares (or securities convertible into or exchangeable or exercisable for Common Shares or equivalent common shares) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(d) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, provided that, in all 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.
(de) In case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(c2.03(c)) hereof at a price per Common Share that is less than ninety (90% %) of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 DirectorsBoard, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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.
(ef) Notwithstanding anything herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, however that any adjustments which by reason of this Subsection 2.3(e2.03(f) 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 2.03 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(e2.03(f), any adjustment required by this Section 2.3 2.03 shall be made no later than the Expiration Time.
(fg) In If as a result of an adjustment made pursuant to this Section 2.03, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive any shares of capital stock (other than Common Shares), or rightsthereafter 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 is practicable to the provisions with respect to the Common Shares contained in this Section 2.03, options or warrants and the provisions of this Agreement with respect to subscribe for or purchase the Common Shares shall apply on like terms to any such capital stockother shares.
(h) All Rights originally issued by the Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the right to purchase, 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 at 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 adjusted Exercise Price, the respective number of Rights and/or securities Common Shares, as the case may be, purchasable from time to time hereunder 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 Company and the Rights Agent shall have authority with the immediately prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereofsuch time, all subject to further adjustment as appropriate to provide for such adjustmentsprovided herein.
(gi) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(h2.03(j), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d2.03(c) and (f2.03(e), 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.
(hj) The Company 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 Company 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(h2.03(j), the Company 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 5.65.06, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(l) In any case in which this Section 2.3 2.03 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, provided that the Company Corporation shall deliver to such Holder holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holderholder'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 2.03 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.32.03, 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 2.32.03, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections 5.1, 5.2 and 5.5this Agreement, take (or permit any Subsidiary of the Company 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 2.32.03, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; Rights, provided that failure to file ssuch 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 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 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
Separation Time (i) declare or pay a dividend on Class A Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Class A Common Shares;
, (ii) subdivide or change the then outstanding Class A Common Shares into a greater number of Common Shares;
or (iii) consolidate or change combine the then outstanding Class A Common Shares into a smaller number of Common Shares; or
(iv) issue any Class A Common Shares, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; (x) the Exercise Price in effect at after such adjustment will be equal to the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised effect immediately prior to such date and at a time when adjustment divided by the share transfer books number of the Company were open, Class A Common Shares including any fractional shares in lieu of which such holder received cash (the “Expansion Factor”) that a holder of one Class A Common Share immediately prior to such dividend, subdivision or combination would have been entitled to receive hold thereafter as a result thereof and (y) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the shares of Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the shares issued in respect of such dividend, subdivisionsubdivision or combination, combination so that each such Common Share will have exactly one Right associated with it. Each adjustment made pursuant to this paragraph shall be made as of the payment or reclassification.
(c) effective date for the applicable dividend, subdivision or combination. In the event that the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date for the issuance of rights, options or warrants to all holders of issue any Common Shares entitling them (for otherwise than in a period expiring within 45 calendar days after transaction referenced in the preceding paragraph, each 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for the Common Shares or equivalent common sharesShare shall be uncertificated, having a conversion, exchange or exercise price, including such Right shall be evidenced by the price required to be paid to purchase registration of such convertible or exchangeable security or right per share) less than 90% Common Share in the register of members of the Market Price per Common Share on Company and the second Trading Day immediately preceding such record date, the Exercise Price to be confirmation thereof provided for in effect after such record date Section 2.2). Rights shall be determined issued by multiplying the Exercise Price Company in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the number of Common Shares outstanding on such record date, plus the number respect 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 are issued 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith sold by the Board of Directors, whose determination shall be described in a statement filed with Company after the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. 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, or if issued, are not exercised prior Separation Time only to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 extent provided in such plans) of the Common SharesSection 5.3.
(db) In the event that the Company shall at any time after the Record Time and prior to the Expiration Separation Time fix a record date issue or distribute any securities or assets in respect of, in lieu of or in exchange 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular pursuant to any non-extraordinary periodic cash dividend or a dividend paid solely in Common Shares) whether by dividend, but in a reclassification or recapitalization (including any dividend payable in securities other than Common Sharessuch transaction involving a merger, consolidation, scheme or arrangement or statutory share exchange), subscription rightsor otherwise, 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company shall at any time after the Record Time and prior to the Expiration Time issue any shares of capital stock (other than Common Shares)make such adjustments, or rights, options or warrants to subscribe for or purchase any such capital stock, or securities convertible into or exchangeable for any such capital stockif any, 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 or other property purchasable upon exercise of Rights would as the Board of Directors, in its sole discretion, may deem to be appropriate andunder the circumstances, notwithstanding Subsection 2.3(b), such adjustments, rather than and the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate necessary to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(ic) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 2.4 shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable calculated 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.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(o) nearest cent. Whenever an adjustment to the Exercise Price is made 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 and (ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or statement therein contained and shall have no duty or liability with respect to, and shall not be deemed to have knowledge of, any adjustment or any such event unless and until it shall have received such a certificate.
(d) Rights Certificates shall represent the right to purchase the securities purchasable under the terms of this Agreement, including any adjustment or change in the securities purchasable upon exercise of the Rights is made Rights, even though such certificates may continue to express the securities purchasable at any the time after the Separation Time pursuant to this Section 2.3, the Company 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 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 to give, notice issuance of the particulars of such adjustment or change to Holders of the initial Rights who request a copy; provided that failure to file sCertificates.
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 the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3 3.2 and in Subsection 3.1(aSection 4.1(a).
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Shares or Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
(ii) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. (a) The Subject to Section 5.18, 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 and in Subsection 3.1(a)2.3.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares (or Convertible Securities other securities of the Corporation exchangeable for or convertible into or giving a right to acquire Common Shares or other shares of capital of the Corporation) otherwise than pursuant to any regular optional share dividend reinvestment plan of the Company providing for the acquisition of Common Shares;program,
(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, Convertible Securities Shares (or other shares of capital stock of the Company Corporation or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other shares of capital of the Corporation) in respect of, in lieu of of, or in exchange for for, existing Common Shares except as otherwise provided in this Section 2.3; , the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securitiesRights outstanding, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("equivalent common shares"), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into the payment or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares, having a conversion, exchange or exercise price, including effective date therefor shall occur after 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 the second Trading Day immediately preceding such record dateSeparation Time, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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 madeadjusted in the manner set forth below. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company shall have exercised its election as provided in Subsection 2.3(h), upon each adjustment of If an Exercise Price as a result of the calculations made in Subsections 2.3(c), (d) and (f), 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 event occurs which would have been issuable upon the exercise of a Right immediately prior to require an adjustment under both 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 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 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 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 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(hSection 2.3 and subsection 3.1(a), the Company 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 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 to be so distributed shall be issued, executed and countersigned in the manner adjustment 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 be in addition to, and shall be made prior to, any adjustment in required under subsection 3.1(a). If 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 of the and 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 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 Company shall be entitled to make such reductions in each 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 Rights outstanding are 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file sadjusted,
Appears in 1 contract
Sources: Rights Agreement (Placer Dome 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 and in Subsection subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or consolidation, other change, or issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change, or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options or warrants (excluding those referred to in Subsection 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 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 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 subsection 2.3(e), any adjustment required by this Section section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 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)subsection 2.3, such adjustments, rather than the adjustments contemplated by Subsection 2.3(b)subsection 2.3, shall be made. The Company Corporation and the Rights Agent shall have authority with the 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 section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections subsections 2.3(c), (d) and (fd), 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 Company 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 Company 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 subsection 2.3(h), the Company 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 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 section 2.3 or Section 3.1an 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 shares securities other than Common Shares, thereafter the number of such other shares securites 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 section 2.3, and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other sharessecurities.
(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 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holder's ’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 section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each the Exercise Price, in addition to those adjustments expressly required by this Section 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 section 2.3, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections sections 5.1, 5.2 and 5.5, take (or permit any Subsidiary of the Company 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 section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file sn
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Extorre Gold Mines 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 2.3 and in Subsection 3.1(a)section 3.2.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common its Shares payable in Common Shares (or Convertible Securities other securities exchangeable for or convertible into or giving a right to acquire Shares) other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(ii) subdivide or change the then outstanding Common Shares into a greater number of Common Shares;; or
(iii) consolidate combine or change the then outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares, Convertible Securities Shares (or other capital stock of the Company securities exchangeable for or convertible into or giving a right to acquire Shares) in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to all holders of Common Shares entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common sharesEQUIVALENT COMMON SHARES"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares Common Shares at a price per Common Share or per equivalent common share Common Share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 Company shall at any time after the Record Time and prior to the 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), 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 in respect of the Rights to be in effect after such record date 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 number of Common Share Shares outstanding on such record date, less plus the fair market 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 price of the convertible securities so to be offered) would purchase at such Market Price per Common Share; and (ii) the denominator of which 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 securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value (as of such consideration shall be determined in good faith by the Board of Directors, 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, holders of the portion of the evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common ShareRights. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is rights or warrants are not so madeissued, the Exercise Price in respect of the Rights shall be readjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixed.
(ec) Notwithstanding anything herein For purposes of this Agreement, the granting of the right to the contrarypurchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, no adjustment in the Exercise Price stock option or similar plans shall be required unless such adjustment would require deemed not to constitute an increase issue of rights, options or decrease of at least 1% in warrants by the Exercise PriceCorporation; provided, however, that any adjustments which by reason of this Subsection 2.3(e) are in all such cases the right to purchase Common Shares is at a price per share that is 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 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 less than the Expiration Time.
(f) In the event the Company 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 90% of the Holders of Rights, the Board of Directors acting current market price per share (determined as provided 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 Company and the Rights Agent shall have authority with the prior approval of the holders plans) of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustmentsShares.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file s
Appears in 1 contract
Sources: Plan of Arrangement (Goldcorp 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 and in Subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than than: (A) pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares, or (B) the issue of Common Shares or Convertible Securities to holders of Common Shares in lieu of but not in an amount which exceeds the value of regular periodic cash dividends;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination consolidation, other change or other change, issuance and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination consolidation, other change or reclassificationissuance.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or an amalgamation) of evidences of indebtedness or assets, including cash (other than a 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 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 this 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 Company 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)(i2.3(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 Company Corporation and the Rights Agent shall have authority authority, with the 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 5.6 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (fd), 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) 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) 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 Company 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 Company 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 Company 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 5.65.7, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 3.1, the holder of any Right thereafter exercised (in the case of Section 2.3) or surrendered (in the case of Section 3.1) shall become entitled to receive any shares securities other than Common Shares, thereafter the number of such other shares 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 sharessecurities.
(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 Company 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holder's ’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 Company Corporation shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(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 Company 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 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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file sor
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 section 2.3 and in Subsection subsection 3.1(a).
(b) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company Corporation providing for the acquisition of Common Shares;
(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, Convertible Securities or other capital stock of the Company Corporation in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section section 2.3; the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(c) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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, shares having the same rights, privileges, restrictions and conditions as Common Shares ("“equivalent common shares"”), or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price to be in effect after such record date 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 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 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, 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, 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. 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, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options or warrants (excluding those referred to in Subsection 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 in respect of the Rights to be in effect after such record date 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 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 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 subsection 2.3(e), any adjustment required by this Section section 2.3 shall be made no later than the Expiration Time.
(f) In the event the Company 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 clause 2.3(b)(i) or (iv), if the Board of Directors acting in good faith determines that the adjustments contemplated by Subsection 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)subsection 2.3, such adjustments, rather than the adjustments contemplated by Subsection 2.3(b)subsection 2.3, shall be made. The Company Corporation and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 section 5.4 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company Corporation shall have exercised its election as provided in Subsection subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections subsections 2.3(c), (d) and (f), 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 Company 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 Company 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 subsection 2.3(h), the Company 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 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 CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 Company 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 section 2.3 or Section 3.1section 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 is practicable to the provisions with respect to the Common Shares contained in this Section 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.
(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 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 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 CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company Corporation shall deliver to such Holder a due b▇▇▇ or other appropriate instrument evidencing such Holder's ’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 section 2.3 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 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 section 2.3, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company Corporation covenants and agrees that, after the Separation Time, it will not, except as permitted by Sections sections 5.1, 5.2 and 5.5, take (or permit any Subsidiary of the Company 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 section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders of the Rights who request a copy; provided that failure to file ssuch certificate or cause such
Appears in 1 contract
Sources: Shareholder Rights Plan Agreement (Olympus Pacific Minerals 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 and in Subsection 3.1(a)2.3.
(ba) In If the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on Common Shares payable in Common Shares (or Convertible Securities other Shares of capital or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of capital) otherwise than pursuant to any regular optional share dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Convertible Securities Shares (or other shares of capital stock or securities exchangeable for or convertible into or giving a right to acquire Common Shares or other Shares of the Company capital) in respect of, in lieu of of, or in exchange for for, existing Common Shares except as otherwise in a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefore shall occur after the Separation Time, the securities purchasable upon exercise of 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; 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 are to be adjusted,
(v) the Exercise Price in effect at after such adjustment shall be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares (or other securities, as Shares of capital) (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date and at a time when the share transfer books of the Company were opendividend, such holder subdivision, change, consolidation or issuance would have been entitled to receive hold immediately thereafter as a result thereof (assuming the exercise of all such exchange or conversion rights, if any); and
(vi) each Right held prior to such adjustment shall become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights 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 Shares issued in respect of such dividend, subdivision, combination change, consolidation or reclassification.
issuance, so that each such Common Share (cor other whole Share or security exchangeable for or convertible into a whole Share of capital) In shall have exactly one Right associated with it. If the event securities purchasable upon exercise of Rights are to be adjusted, the Company securities purchasable upon exercise of each Right after such adjustment 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 exchange, conversion or 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 upon the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. If, after the Record Time and prior to the Expiration Time, the Corporation issues any shares of its authorized capital other than Common Shares in a transaction of a type described in the first sentence of this Subsection 2.3(a), such 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 agree to amend this Agreement in order to effect such treatment. If the Corporation, at any time after the Record Time and prior to the Expiration Separation Time, issues any Common Shares otherwise than in a transaction referred to in 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 Share.
(b) If the Corporation, at any time after the Record Time fix and prior to the Separation Time, fixes a record date for the issuance making of rights, options or warrants a distribution to all holders of Common Shares of rights 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 securities convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common shares Shares) at a price per Common Share or per equivalent common share (or, if in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent common sharesShares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right right) per 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 to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to such record date multiplied by a fraction:
(i) , of which the numerator of which shall be the number of Common Shares outstanding on such record date, 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 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
(ii) and of which the denominator of which shall be the number of shares 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, in a consideration part or all of which may be is in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with Board. To the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. Such adjustment shall be made successively whenever extent that any such a record date is fixed, and in the event that such rights, options rights or warrants are not so issuedissued or, or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would then be in effect based upon the number of Common Shares, equivalent common shares Shares (or securities convertible into or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be. For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to a any optional dividend reinvestment plan or and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee benefitstock option, stock option 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 not to constitute an issue of rights, options rights or warrants by the CompanyCorporation; provided, provided however, that, in all such casesthe case of any 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 If the event the Company shall Corporation, at any time after the Record Time and prior to the Expiration Time fix Separation Time, fixes 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash assets (other than a regular periodic cash dividend Regular Periodic Cash Dividend or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), subscription rights, options ) or rights or warrants (excluding those referred to in Subsection 2.3(c2.3(a) or 2.3(b)) 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 in respect of the Rights to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying shall, subject to adjustment as provided in the penultimate sentence of Subsection 2.3(b), equal the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fractionless the fair market value 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.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the numerator payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance in the case 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so an adjustment made pursuant to be distributedSubsection 2.3(a) above; and
(ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfor the applicable dividend or distribution, and in the event that such a distribution is not so made, the Exercise Price shall be readjusted case of an adjustment made pursuant to be the Exercise Price which would have been in effect if such record date had not been fixedsubsections 2.3(b) or (c) above.
(e) Notwithstanding anything herein to the contrary, no adjustment in to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, 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 Each adjustment made pursuant to this Section 2.3 shall be made calculated to the nearest cent or to the nearest one ten-thousandth of a Common Share or Right. Notwithstanding , as 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 Timecase may be.
(f) In All Rights originally issued by the event Corporation subsequent to any adjustment made to an Exercise Price hereunder shall evidence the Company shall right to purchase, 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 adjusted Exercise Price, the number of Rights and/or securities Common Shares purchasable from time to time hereunder upon exercise of Rights would be appropriate andthe Rights, notwithstanding Subsection 2.3(b), such adjustments, rather than the adjustments contemplated by Subsection 2.3(b), shall be made. The Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights all subject to amend this Agreement in accordance with Section 5.5 hereof, further adjustment as appropriate to provide for such adjustmentsprovided herein.
(g) Unless the Company shall have Corporation has 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), subsections 2.3(b) or (d) and (fc), 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 Shares (calculated to the nearest one ten-thousandth), ) obtained by:
(i) multiplying:
multiplying (A) the number of such Common Shares which would have been issuable upon the exercise of covered by a Right immediately prior to this adjustment; by
, 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 Company 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 immediately prior to such adjustment of the number of Rights shall become that the number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to the adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The Company Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, 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 date thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days later than after 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 Company 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, evidencing the additional Rights to which such holders holder shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, shall cause to be distributed to such holders of record in substitution and or replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the CompanyCorporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the CompanyCorporation, the relevant 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.
(i) Each Right originally issued by the Company subsequent to Irrespective of any adjustment made to or change in the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Common Shares securities purchasable from time to time hereunder upon exercise of a Right immediately prior the Rights, the Rights Certificates theretofore and thereafter issued may continue to such issue, all subject to further adjustment as provided hereinexpress the securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(j) If If, as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, the holder of any Right thereafter exercised Exercised shall become entitled to receive any shares securities other than Common Shares, thereafter the number of such other shares 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 may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3, 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other sharessecurities.
(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 requires that an any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer until the occurrence of such event the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, provided however, that the Company Corporation shall deliver to such Holder holder a due b▇▇▇ bill or other appropriate instrument evidencing such Holder's 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(ol) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon the exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.3, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(i) prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment;
(ii) file with the Rights Agent and with the each transfer agent for the Common Shares Shares, a certificate specifying the particulars copy of such adjustment or changecertificate; and
(iiiii) give, or cause the Rights Agent to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copy; provided that failure Rights. Failure to file ssuch 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: Rights 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 the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3 3.2 and in Subsection 3.1(aSection 4.1(a).
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Shares or Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issuedissued or, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been then be in effect if such record date had not been fixedfixed or, or to the Exercise Price which would be in effect based upon the number of Common Shares, equivalent common shares Shares (or securities convertible into or exchangeable or exercisable for Common Shares Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 case the event the Company Corporation shall at any time after the Record Time and prior to the 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 in which the Company Corporation is the continuing corporation or amalgamationcorporation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(cSection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 3.2(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 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(eSection 3.2(e), any adjustment required by this Section 2.3 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 (ii) the Expiration Time.
(f) In If as a result of an adjustment made pursuant to Section 4.1, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this Section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(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 respective number of Common Shares, as the case may be, purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hSection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dSection 3.2(b) and (fSection 3.2(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.
(hi) The Company 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 Company 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(hSection 3.2(i), the Company 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 5.66.4, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(lk) In any case in which this Section 2.3 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, 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 Corporation shall deliver to such Holder holder a due b▇▇▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.33.2, 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 Securitiessecurities 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 2.33.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(om) Whenever an adjustment to the Exercise Price or a change in the securities purchasable purchaseable upon exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.33.2, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copyRights; provided that failure to file ssuch 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 1 contract
Sources: Shareholder Rights Plan Agreement (Mag Silver 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 and in Subsection 3.1(a).
(b) In the event the Company shall at any time after the Record Time and prior to the Expiration Time:
Distribution Time (i) declare or pay a dividend on Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Shares;
, (ii) subdivide or change the then issued and outstanding Common Shares into a greater number of Common Shares;
or (iii) consolidate or change iii)consolidate the then issued and outstanding Common Shares into a smaller number of Common Shares; or
, then (ivx) issue any Common Shares, Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; the Exercise Price in effect at after such adjustment will be equal to the time of the record date for Exercise Price in effect immediately prior to such dividend or of the effective date of such subdivision, combination or other change, and adjustment divided by the number of Common Shares or other securities, as including any fractional shares in lieu of which such holder received cash (the case may be, issuable on such date, shall be proportionately adjusted so “Expansion Factor”) that the a holder of any Right shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of one Common Shares or other securities, as the case may be, which, if such Right had been exercised Share immediately prior to such date and at a time when the share transfer books of the Company were opendividend, such holder subdivision or consolidation would have been entitled to receive hold thereafter as a result thereof and (y) each Right held prior to such adjustment will 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 shares issued in respect of such dividend, subdivisionsubdivision or consolidation, combination so that each such Common Share will have exactly one Right associated with it. Each adjustment made pursuant to this paragraph shall be made as of the payment or reclassification.
(c) effective date for the applicable dividend, subdivision or consolidation. In the event that the Company shall at any time after the Record Time and prior to the Expiration Distribution Time fix a record date for the issuance of rights, options or warrants to all holders of issue any Common Shares entitling them (for otherwise than in a period expiring within 45 calendar days after transaction referred to in the preceding paragraph, each 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 securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate evidencing such share (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for any Common Shares or equivalent common sharesare not evidenced by certificates, having a conversion, exchange or exercise price, including such Right shall be evidenced by the price required to be paid to purchase registration of such convertible or exchangeable security or right per share) less than 90% Common Shares in the register of members of the Market Price per Common Share on Company and the second Trading Day immediately preceding such record date, the Exercise Price to be confirmation thereof provided for in effect after such record date Section 2.2). Rights shall be determined issued by multiplying the Exercise Price Company in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the number of Common Shares outstanding on such record date, plus the number respect 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 are issued 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 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith sold by the Board of Directors, whose determination shall be described in a statement filed with Company after the Rights Agent and shall be binding on the Rights Agent and the Holders of Rights. 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, or if issued, are not exercised prior Distribution Time only to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, 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 or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the Company; provided, however, that, in all 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 extent provided in such plans) of the Common SharesSection 5.3.
(db) In the event that the Company shall at any time after the Record Time and prior to the Expiration Distribution Time fix a record date issue or distribute any securities or assets in respect of, in lieu of or in exchange 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 Company is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular pursuant to any non-extraordinary periodic cash dividend or a dividend paid solely in Common Shares) whether by dividend, but in a reclassification or recapitalization (including any dividend payable in securities other than Common Sharessuch transaction involving an amalgamation, merger, consolidation or share exchange), subscription rightsor otherwise, options the Company shall make such adjustments, if any, in the Exercise Price, number of Rights and/or securities or warrants (excluding those referred to in Subsection 2.3(c)) hereof at a price per Common Share that is less than 90% other property purchasable upon exercise of Rights as the Board of Directors of the Market Price per Common Share on Company, in its sole discretion, may deem to be appropriate under the second Trading Day immediately preceding circumstances in order to adequately protect the interests of the holders of Rights generally, and the Company and the Rights Agent shall amend this Agreement as necessary to provide for such record date, adjustments.
(c) Each adjustment to the Exercise Price in respect of the Rights made pursuant to be in effect after such record date this Section 2.4 shall be determined by multiplying calculated to the Exercise Price in respect nearest cent. Notwithstanding any provision 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, 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 evidences of indebtedness, cash, assets, subscription rights, options or warrants so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common Share. Such 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 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, provided that any adjustments which by reason of this Subsection 2.3(eSection 2.4(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 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 Company 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 Company and the Rights Agent shall have authority with the prior approval of the holders of the Common Shares or the Holders of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate to provide for such adjustments.
(g) Unless the Company 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), (d) and (f), 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 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 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 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 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 Company 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 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 to be so 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.
(i) 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(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 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 Exercise Price in effect prior to such adjustment; provided, however, that the Company 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 Company shall be entitled to make such reductions in each 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 Company to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(o) Whenever an adjustment to the Exercise Price is made 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 and (ii) promptly file with the Rights Agent and with each transfer agent for the Common Shares a copy of such certificate.
(d) Rights Certificates shall represent the right to purchase the securities purchasable under the terms of this Agreement, including any adjustment or a change in the securities purchasable upon exercise of the Rights is made Rights, even though such certificates may continue to express the securities purchasable at any the time after the Separation Time pursuant to this Section 2.3, the Company 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 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 to give, notice issuance of the particulars of such adjustment or change to Holders of the initial Rights who request a copy; provided that failure to file sCertificates.
Appears in 1 contract
Sources: Rights Agreement (MF Global 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 2.3 3.2 and in Subsection 3.1(aSection 4.1(a).
(ba) In the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common Shares or Convertible Securities other than pursuant to any regular dividend reinvestment plan of the Company providing for the acquisition of Common Sharesprogram;
(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, Shares or Convertible Securities or other capital stock of the Company in respect of, in lieu of or in exchange for existing Common Shares except as otherwise provided in this Section 2.3; Shares, the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or other change, and the number of Common Shares or other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Common Shares or other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the share transfer books of the Company Corporation were open, such holder would have been entitled to receive as a result of such dividend, subdivision, combination or reclassification.
(cb) In case the event the Company Corporation shall at any time after the Record Time and prior to the Expiration Time fix a record date for the issuance of rights, options or warrants to 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 Common Shares (or purchase Common Shares, shares having the same rights, privileges, restrictions privileges and conditions preferences as Common Shares ("equivalent common shares"), ) or securities convertible into or exchangeable for or carrying a right to purchase Common Shares or equivalent common shares at a price per Common Share or per equivalent common share (oror having a conversion price per share, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Common Shares or equivalent 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) less than 90% of the Market Price per Common Share on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date 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 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 and/or equivalent common 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) would purchase at such Market Price per Common Share; and
and (ii) the denominator of which 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 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 may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights, options or warrants are not so issued, or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted re-adjusted to be the Exercise Price which would have been 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, equivalent common shares or securities convertible into or exchangeable or exercisable for Common Shares actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(c) For the purposes of this Agreement, the granting of the right to purchase Common Shares (whether from treasury or otherwise) pursuant to a dividend reinvestment plan or any employee benefit, stock option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the CompanyCorporation; provided, however, that, in all 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 case the event the Company Corporation shall at any time after the Record Time and prior to the 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 Company Corporation is the continuing corporation or amalgamation) of evidences of indebtedness or assets, including cash (other than a regular periodic cash dividend paid in the ordinary course or a dividend paid in Common Shares, but including any dividend payable in securities other than Common Shares), or subscription rights, options rights or warrants entitling them to subscribe for or purchase Common Shares (excluding those referred to in Subsection 2.3(cSection 3.2(b)) 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 in respect of the Rights to be in effect after such record date 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, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the Holders holders of the Rights), on a per share basis, ) of the portion of the cash, assets or evidences of indebtedness, cash, assets, subscription rights, options or warrants indebtedness so to be distributeddistributed or of such subscription rights or warrants applicable to a Common Share; and
and (ii) the denominator of which shall be such Market Price per Common Share. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such a distribution is not so made, the Exercise Price in respect of the Rights shall be readjusted 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 herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this Subsection 2.3(eSection 3.2(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 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or Rightother share, as the case may be. Notwithstanding the first sentence of this Subsection 2.3(eSection 3.2(e), any adjustment required by this Section 2.3 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 (ii) the Expiration Time.
(f) In If as a result of an adjustment made pursuant to Section 4.1, the event the Company holder of any Right thereafter exercised shall at any time after the Record Time and prior become entitled to the Expiration Time issue receive 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 thereafter 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 such other shares so receivable upon exercise of Rights would be appropriate and, notwithstanding Subsection 2.3(b), such adjustments, rather than any Right and the adjustments contemplated by Subsection 2.3(b), applicable Exercise Price thereof shall be made. The Company subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the Rights Agent shall have authority provisions with the prior approval of the holders of respect to the Common Shares or contained in this Section 3.2, and the Holders provisions of Rights to amend this Agreement in accordance with Section 5.5 hereof, as appropriate respect to provide for the Common Shares shall apply on like terms to any such adjustmentsother shares.
(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 respective number of Common Shares, as the case may be, purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company Corporation shall have exercised its election as provided in Subsection 2.3(hSection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in Subsections 2.3(c), (dSections 3.2(b) and (fd), 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.
(hi) The Company 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 Company 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(hSection 3.2(i), the Company 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 5.66.4, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the CompanyCorporation, 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 CompanyCorporation, 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 CompanyCorporation, 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 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.
(j) If as a result of an adjustment made pursuant to this Section 2.3 or Section 3.1, 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 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 shares.
(k) Irrespective of any adjustment or change in the an Exercise Price or the number of Common Shares issuable upon the exercise of the Rights, the Rights Certificate Certificates theretofore 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.
(lk) In any case in which this Section 2.3 3.2 shall require that an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Company Corporation may elect to defer defer, until the occurrence of such event event, the issuance to the Holder holder of any Right exercised after such record date of the number of Common Shares and other securities of the CompanyCorporation, if any, issuable upon such exercise over and above the number of Common Shares and other securities of the CompanyCorporation, 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 Corporation shall deliver to such Holder holder a due b▇▇▇ or other appropriate instrument evidencing such Holderholder's right to receive such additional Common Shares (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(ml) Notwithstanding anything in this Section 2.3 3.2 to the contrary, the Company Corporation shall be entitled to make such reductions in each Exercise Price, in addition to those adjustments expressly required by this Section 2.33.2, 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 Securitiessecurities 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 2.33.2, hereafter made by the Company Corporation to holders of its Common Shares, shall not be taxable to such shareholders.
(n) The Company 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 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.
(om) Whenever an adjustment to the Exercise Price or a change in the securities purchasable purchaseable upon exercise of the Rights is made at any time after the Separation Time pursuant to this Section 2.33.2, the Company Corporation shall promptly and in any event, where such change or adjustment occurs prior to the Separation Time, not later than the Separation Timepromptly:
(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 to give, notice of the particulars of such adjustment or change to Holders be given to the holders of the Rights who request a copyRights; provided that failure to file ssuch 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 1 contract
Sources: Shareholder Rights Plan Agreement (Mag Silver Corp)