Adjustment of Number of Shares and Exercise Price. The number of shares of Common Stock underlying the Warrant and the Exercise Price shall be subject to adjustment from time to time as follows in each applicable instance. With respect to any determination of adjustments to the number of shares of Common Stock or the Exercise Price which may be required by this Section 3, the Company's board of directors shall make a good faith determination regarding any adjustment. (a) In the event of any change in the outstanding Common Stock of the Company due to stock dividends, consolidations, stock splits or reverse stock splits, the number of shares of Common Stock underlying the Warrant and/or the Exercise Price will be appropriately adjusted, upwards or downwards, so that the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change. (b) If the Company issues or sells any Additional Stock (as defined in Section 3(l) below) for a consideration less than Fair Value (as defined in Section 3(c) herein) as of the date of execution of the binding written agreement providing for such issuance or sale, the Exercise Price for the Warrant which was in effect immediately prior to each such issuance shall be reduced to the "Diluted Price". The Diluted Price shall be calculated in accordance with the following formula for any issuance of Additional Stock in a transaction triggering the rights afforded in this Section 3(b) (the "Trigger Transaction"). The product of the per share consideration and the number of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product of (i) the Exercise Price (subject to adjustment pursuant to this Section 3) and (ii) the quotient of (x) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock that would have been issued for the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transaction.
Appears in 4 contracts
Samples: Warrant Agreement (Alion Science & Technology Corp), Warrant Agreement (Alion Science & Technology Corp), Warrant Agreement (Alion Science & Technology Corp)
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instance. With respect Section 4.1(a) (i), (ii) or (iii) being called a “Share Reorganization”) then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to any determination of adjustments in (i) or (iii) above be decreased in proportion to the number of shares outstanding Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of Common Stock the events referred to in (ii) above, be increased in proportion to the number of outstanding Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price in effect immediately prior to such effective date or record date by a fraction, the numerator of which shall be the number of Shares outstanding on such effective date or record date before giving effect to such Share Reorganization and the denominator of which shall be the number of Shares outstanding as of the effective date or record date after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Shares are distributed, the number of Share that would have been outstanding had such securities been exchanged for or converted into Shares on such record date or effective date). Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date (a “Rights Offering”), the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus a number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Shares (or securities convertible or exchangeable into Shares) actually issued upon the exercise of such rights or warrants, as the case may be required by be. Upon any adjustment of the Exercise Price pursuant to this Section 34.1(b), the Company's board Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of directors which the numerator shall make be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a good faith determination regarding any adjustment.record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates;
(ac) In if and whenever at any time during the event Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Shares of (i) securities of any change in the outstanding Common Stock class, whether of the Company due Corporation or any other entity (other than Shares), (ii) rights, options or warrants to stock dividendssubscribe for or purchase Shares (or other securities convertible into or exchangeable for Shares), consolidationsother than pursuant to a Rights Offering; (iii) evidences of its indebtedness or (iv) any property or other assets then, stock splits in each such case, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price on such record date, less the excess, if any, of the fair market value on such record date, as determined by the Corporation (whose determination shall be conclusive), of such securities or reverse stock splitsother assets so issued or distributed over the fair market value of any consideration received therefor by the Corporation from the holders of the Shares, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price; and Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(c), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Shares or a capital reorganization of the Corporation other than as described in Section 4.1(a) or a reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a transfer, sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, upon the exercise of such right thereafter, shall be entitled to receive upon payment of the Exercise Price and shall accept, in lieu of the number of Shares that prior to such effective date the Registered Warrantholder would have been entitled to receive, the number of shares or other securities or property of Common Stock underlying the Corporation or of the body corporate, trust, partnership or other entity resulting from such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, or to which such transfer, sale or conveyance may be made, as the case may be, that such Registered Warrantholder would have been entitled to receive on such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, if, on the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Shares to which prior to such effective date it was entitled to acquire upon the exercise of the Warrants. If determined appropriate by the Warrant and/or Agent, relying on advice of Counsel, to give effect to or to evidence the provisions of this Section 4.1(d), the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Registered Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be possible, with respect to any shares, other securities or property to which a Registered Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, changes, capital reorganizations, consolidations, amalgamations, arrangements or mergers;
(e) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after the record date and prior to completion of such event the additional Shares issuable upon such exercise by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this Section 4.1(e), have become the holder of record of such additional Shares pursuant to Section 4.1;
(f) in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) require that an adjustment be made to the Exercise Price, no such adjustment shall be made if the Registered Warrantholders of the outstanding Warrants receive, subject to any required stock exchange or regulatory approval, the rights or warrants referred to in Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness or assets referred to in Section 4.1(c), as the case may be, in such kind and number as they would have received if they had been holders of Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrants having then been exercised into Shares at the Exercise Price will be appropriately adjustedin effect on the applicable record date or effective date, upwards or downwards, so that as the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change.case may be;
(bg) If the Company issues or sells any Additional Stock (as defined adjustments provided for in this Section 3(l) below) for a consideration less than Fair Value (as defined 4.1 are cumulative, and shall, in Section 3(c) herein) as the case of the date of execution of the binding written agreement providing for such issuance or sale, adjustments to the Exercise Price for the Warrant which was in effect immediately prior to each such issuance shall be reduced computed to the "Diluted Price". The Diluted nearest whole cent and shall apply to successive subdivisions, re-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided that, notwithstanding any other provision of this Section, no adjustment of the Exercise Price shall be calculated required unless such adjustment would require an increase or decrease of at least 1% in accordance with the following formula for any issuance of Additional Stock in a transaction triggering the rights afforded in this Section 3(b) (the "Trigger Transaction"). The product of the per share consideration and the number of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product of (i) the Exercise Price then in effect; provided, however, that any adjustments which by reason of this Section 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and
(subject to h) after any adjustment pursuant to this Section 3) 4.1, the term “Shares” where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and (ii) all prior adjustments pursuant to this Section 4.1, the quotient Registered Warrantholder is entitled to receive upon the exercise of (x) its Warrant, and the number of then outstanding shares of Common Stock on Shares indicated by any exercise made pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus Warrant shall be interpreted to mean the number of shares Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of Additional Stock that would have been issued for such adjustment and all prior adjustments pursuant to this Section 4.1, upon the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the full exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transactiona Warrant.
Appears in 4 contracts
Samples: Warrant Indenture, Warrant Indenture, Warrant Indenture
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instance. With respect Section 4.1(a) (i), (ii) or (iii) being called a “Share Reorganization”) then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to any determination of adjustments in (i) or (iii) above be decreased in proportion to the number of shares outstanding Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of Common Stock the events referred to in (ii) above, be increased in proportion to the number of outstanding Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price in effect immediately prior to such effective date or record date by a fraction, the numerator of which shall be the number of Shares outstanding on such effective date or record date before giving effect to such Share Reorganization and the denominator of which shall be the number of Shares outstanding as of the effective date or record date after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Shares are distributed, the number of Share that would have been outstanding had such securities been exchanged for or converted into Shares on such record date or effective date). Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date (a “Rights Offering”), the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus a number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Shares (or securities convertible or exchangeable into Shares) actually issued upon the exercise of such rights or warrants, as the case may be required by be. Upon any adjustment of the Exercise Price pursuant to this Section 34.1(b), the Company's board Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of directors which the numerator shall make be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a good faith determination regarding any adjustment.record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates;
(ac) In if and whenever at any time during the event Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Shares of (i) securities of any change in the outstanding Common Stock class, whether of the Company due Corporation or any other entity (other than Shares), (ii) rights, options or warrants to stock dividendssubscribe for or purchase Shares (or other securities convertible into or exchangeable for Shares), consolidationsother than pursuant to a Rights Offering; (iii) evidences of its indebtedness or (iv) any property or other assets then, stock splits in each such case, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price on such record date, less the excess, if any, of the fair market value on such record date, as determined by the Corporation (whose determination shall be conclusive), of such securities or reverse stock splitsother assets so issued or distributed over the fair market value of any consideration received therefor by the Corporation from the holders of the Shares, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price; and Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(c), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Shares or a capital reorganization of the Corporation other than as described in Section 4.1(a) or a reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a transfer, sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, upon the exercise of such right thereafter, shall be entitled to receive upon payment of the Exercise Price and shall accept, in lieu of the number of Shares that prior to such effective date the Registered Warrantholder would have been entitled to receive, the number of shares or other securities or property of Common Stock underlying the Corporation or of the body corporate, trust, partnership or other entity resulting from such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, or to which such transfer, sale or conveyance may be made, as the case may be, that such Registered Warrantholder would have been entitled to receive on such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, if, on the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Shares to which prior to such effective date it was entitled to acquire upon the exercise of the Warrants. If determined appropriate by the Warrant and/or Agent, relying on advice of Counsel, to give effect to or to evidence the provisions of this Section 4.1(d), the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Registered Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be possible, with respect to any shares, other securities or property to which a Registered Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, changes, capital reorganizations, consolidations, amalgamations, arrangements or mergers;
(e) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after the record date and prior to completion of such event the additional Shares issuable upon such exercise by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this Section 4.1(e), have become the holder of record of such additional Shares pursuant to Section 4.1;
(f) in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) require that an adjustment be made to the Exercise Price, no such adjustment shall be made if the Registered Warrantholders of the outstanding Warrants receive, subject to any required stock exchange or regulatory approval, the rights or warrants referred to in Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness or assets referred to in Section 4.1(c), as the case may be, in such kind and number as they would have received if they had been holders of Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrants having then been exercised into Shares at the Exercise Price will be appropriately adjustedin effect on the applicable record date or effective date, upwards or downwards, so that as the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change.case may be;
(bg) If the Company issues or sells any Additional Stock (as defined adjustments provided for in this Section 3(l) below) for a consideration less than Fair Value (as defined 4.1 are cumulative, and shall, in Section 3(c) herein) as the case of the date of execution of the binding written agreement providing for such issuance or sale, adjustments to the Exercise Price for the Warrant which was in effect immediately prior to each such issuance shall be reduced computed to the "Diluted Price". The Diluted nearest whole cent and shall apply to successive subdivisions, re-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided that, notwithstanding any other provision of this Section, no adjustment of the Exercise Price shall be calculated required unless such adjustment would require an increase or decrease of at least 1% in accordance with the following formula for any issuance of Additional Stock in a transaction triggering the rights afforded in this Section 3(b) (the "Trigger Transaction"). The product of the per share consideration and the number of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product of (i) the Exercise Price then in effect; provided, however, that any adjustments which by reason of this Section 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and
(subject to h) after any adjustment pursuant to this Section 3) 4.1, the term “Shares” where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and (ii) all prior adjustments pursuant to this Section 4.1, the quotient Registered Warrantholder is entitled to receive upon the exercise of (x) its Warrant, and the number of then outstanding shares of Common Stock on Shares indicated by any exercise made pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus Warrant shall be interpreted to mean the number of shares Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of Additional Stock that would have been issued for such adjustment and all prior adjustments pursuant to this Section 4.1, upon the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the full exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transactiona Warrant.
Appears in 2 contracts
Samples: Warrant Indenture, Warrant Indenture
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instance. With respect Section 4.1(a) (i), (ii) or (iii) being called a "Share Reorganization") then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to any determination of adjustments in (i) or (iii) above be decreased in proportion to the number of shares outstanding Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of Common Stock the events referred to in (ii) above, be increased in proportion to the number of outstanding Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price in effect immediately prior to such effective date or record date by a fraction, the numerator of which shall be the number of Shares outstanding on such effective date or record date before giving effect to such Share Reorganization and the denominator of which shall be the number of Shares outstanding as of the effective date or record date after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Shares are distributed, the number of Share that would have been outstanding had such securities been exchanged for or converted into Shares on such record date or effective date). Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date (a "Rights Offering"), the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus a number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Shares (or securities convertible or exchangeable into Shares) actually issued upon the exercise of such rights or warrants, as the case may be required by be. Upon any adjustment of the Exercise Price pursuant to this Section 34.1(b), the Company's board Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of directors which the numerator shall make be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a good faith determination regarding any adjustment.record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates;
(ac) In if and whenever at any time during the event Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Shares of (i) securities of any change in the outstanding Common Stock class, whether of the Company due Corporation or any other entity (other than Shares), (ii) rights, options or warrants to stock dividendssubscribe for or purchase Shares (or other securities convertible into or exchangeable for Shares), consolidationsother than pursuant to a Rights Offering; (iii) evidences of its indebtedness or (iv) any property or other assets then, stock splits in each such case, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price on such record date, less the excess, if any, of the fair market value on such record date, as determined by the Corporation (whose determination shall be conclusive), of such securities or reverse stock splitsother assets so issued or distributed over the fair market value of any consideration received therefor by the Corporation from the holders of the Shares, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price; and Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(c), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Shares or a capital reorganization of the Corporation other than as described in Section 4.1(a) or a reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a transfer, sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, upon the exercise of such right thereafter, shall be entitled to receive upon payment of the Exercise Price and shall accept, in lieu of the number of Shares that prior to such effective date the Registered Warrantholder would have been entitled to receive, the number of shares or other securities or property of Common Stock underlying the Corporation or of the body corporate, trust, partnership or other entity resulting from such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, or to which such transfer, sale or conveyance may be made, as the case may be, that such Registered Warrantholder would have been entitled to receive on such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, if, on the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Shares to which prior to such effective date it was entitled to acquire upon the exercise of the Warrants. If determined appropriate by the Warrant and/or Agent, relying on advice of Counsel, to give effect to or to evidence the provisions of this Section 4.1(d), the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Registered Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be possible, with respect to any shares, other securities or property to which a Registered Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, changes, capital reorganizations, consolidations, amalgamations, arrangements or mergers;
(e) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after the record date and prior to completion of such event the additional Shares issuable upon such exercise by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder's right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this Section 4.1(e), have become the holder of record of such additional Shares pursuant to Section 4.1;
(f) in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) require that an adjustment be made to the Exercise Price, no such adjustment shall be made if the Registered Warrantholders of the outstanding Warrants receive, subject to any required stock exchange or regulatory approval, the rights or warrants referred to in Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness or assets referred to in Section 4.1(c), as the case may be, in such kind and number as they would have received if they had been holders of Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrants having then been exercised into Shares at the Exercise Price will be appropriately adjustedin effect on the applicable record date or effective date, upwards or downwards, so that as the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change.case may be;
(bg) If the Company issues or sells any Additional Stock (as defined adjustments provided for in this Section 3(l) below) for a consideration less than Fair Value (as defined 4.1 are cumulative, and shall, in Section 3(c) herein) as the case of the date of execution of the binding written agreement providing for such issuance or sale, adjustments to the Exercise Price for the Warrant which was in effect immediately prior to each such issuance shall be reduced computed to the "Diluted Price". The Diluted nearest whole cent and shall apply to successive subdivisions, re-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided that, notwithstanding any other provision of this Section, no adjustment of the Exercise Price shall be calculated required unless such adjustment would require an increase or decrease of at least 1% in accordance with the following formula for any issuance of Additional Stock in a transaction triggering the rights afforded in this Section 3(b) (the "Trigger Transaction"). The product of the per share consideration and the number of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product of (i) the Exercise Price then in effect; provided, however, that any adjustments which by reason of this Section 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and
(subject to h) after any adjustment pursuant to this Section 3) 4.1, the term "Shares" where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and (ii) all prior adjustments pursuant to this Section 4.1, the quotient Registered Warrantholder is entitled to receive upon the exercise of (x) its Warrant, and the number of then outstanding shares of Common Stock on Shares indicated by any exercise made pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus Warrant shall be interpreted to mean the number of shares Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of Additional Stock that would have been issued for such adjustment and all prior adjustments pursuant to this Section 4.1, upon the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the full exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transactiona Warrant.
Appears in 1 contract
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instance. With respect Section 4.1(a) (i), (ii) or (iii) being called a “Share Reorganization”) then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to any determination of adjustments in (i) or (iii) above be decreased in proportion to the number of shares outstanding Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of Common Stock the events referred to in (ii) above, be increased in proportion to the number of outstanding Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price which may be required by this Section 3, the Company's board of directors shall make a good faith determination regarding any adjustment.
(a) In the event of any change in the outstanding Common Stock of the Company due to stock dividends, consolidations, stock splits or reverse stock splits, the number of shares of Common Stock underlying the Warrant and/or the Exercise Price will be appropriately adjusted, upwards or downwards, so that the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change.
(b) If the Company issues or sells any Additional Stock (as defined in Section 3(l) below) for a consideration less than Fair Value (as defined in Section 3(c) herein) as of the date of execution of the binding written agreement providing for such issuance or sale, the Exercise Price for the Warrant which was in effect immediately prior to each such issuance effective date or record date by a fraction, the numerator of which shall be reduced the number of Shares outstanding on such effective date or record date before giving effect to such Share Reorganization and the "Diluted Price"denominator of which shall be the number of Shares outstanding as of the effective date or record date after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Shares are distributed, the number of Share that would have been outstanding had such securities been exchanged for or converted into Shares on such record date or effective date). The Diluted Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date (a “Rights Offering”), the Exercise Price shall be calculated adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in accordance with effect on such record date by a fraction, of which the following formula numerator shall be the total number of Shares outstanding on such record date plus a number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any issuance Shares owned by or held for the account of Additional Stock the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Shares (or securities convertible or exchangeable into Shares) actually issued upon the exercise of such rights or warrants, as the case may be. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(b), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a transaction triggering fraction, of which the rights afforded numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 3(b4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates;
(c) if and whenever at any time during the "Trigger Transaction"). The product Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the per share consideration and the number holders of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product its outstanding Shares of (i) securities of any class, whether of the Exercise Price Corporation or any other entity (subject to adjustment pursuant to this Section 3) and other than Shares), (ii) the quotient of rights, options or warrants to subscribe for or purchase Shares (x) the number of then outstanding shares of Common Stock on or other securities convertible into or exchangeable for Shares), other than pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock that would have been issued for the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transaction.Rights Offering;
Appears in 1 contract
Samples: Warrant Indenture
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instance. With respect Section 4.1(a) (i), (ii) or (iii) being called a “Common Share Reorganization”) then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to any determination of adjustments in (i) or (iii) above be decreased in proportion to the number of shares outstanding Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of Common Stock the events referred to in (ii) above, be increased in proportion to the number of outstanding Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price in effect immediately prior to such effective date or record date by a fraction, the numerator of which shall be the number of Shares outstanding on such effective date or record date before giving effect to such Share Reorganization and the denominator of which shall be the number of Shares outstanding as of the effective date or record date after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Shares are distributed, the number of Share that would have been outstanding had such securities been exchanged for or converted into Shares on such record date or effective date). Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date (a “Rights Offering”), the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus a number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Shares (or securities convertible or exchangeable into Shares) actually issued upon the exercise of such rights or warrants, as the case may be required by be. Upon any adjustment of the Exercise Price pursuant to this Section 34.1(b), the Company's board Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of directors which the numerator shall make be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a good faith determination regarding any adjustment.record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates;
(ac) In if and whenever at any time during the event Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Shares of (i) securities of any change in the outstanding Common Stock class, whether of the Company due Corporation or any other entity (other than Shares), (ii) rights, options or warrants to stock dividendssubscribe for or purchase Shares (or other securities convertible into or exchangeable for Shares), consolidationsother than pursuant to a Rights Offering; (iii) evidences of its indebtedness or (iv) any property or other assets then, stock splits in each such case, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price on such record date, less the excess, if any, of the fair market value on such record date, as determined by the Corporation (whose determination shall be conclusive), of such securities or reverse stock splitsother assets so issued or distributed over the fair market value of any consideration received therefor by the Corporation from the holders of the Shares, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price; and Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(c), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(d) if and whenever at any time during the Adjustment Period, there is a reclassification of the Shares or a capital reorganization of the Corporation other than as described in Section 4.1(a) or a reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a transfer, sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, upon the exercise of such right thereafter, shall be entitled to receive upon payment of the Exercise Price and shall accept, in lieu of the number of Shares that prior to such effective date the Registered Warrantholder would have been entitled to receive, the number of shares or other securities or property of Common Stock underlying the Corporation or of the body corporate, trust, partnership or other entity resulting from such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, or to which such transfer, sale or conveyance may be made, as the case may be, that such Registered Warrantholder would have been entitled to receive on such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, if, on the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Shares to which prior to such effective date it was entitled to acquire upon the exercise of the Warrants. If determined appropriate by the Warrant and/or Agent, relying on advice of Counsel, to give effect to or to evidence the provisions of this Section 4.1(d), the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Registered Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be possible, with respect to any shares, other securities or property to which a Registered Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, changes, capital reorganizations, consolidations, amalgamations, arrangements or mergers;
(e) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after the record date and prior to completion of such event the additional Shares issuable upon such exercise by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this Section 4.1(e), have become the holder of record of such additional Shares pursuant to Section 4.1;
(f) in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) require that an adjustment be made to the Exercise Price, no such adjustment shall be made if the Registered Warrantholders of the outstanding Warrants receive, subject to any required stock exchange or regulatory approval, the rights or warrants referred to in Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness or assets referred to in Section 4.1(c), as the case may be, in such kind and number as they would have received if they had been holders of Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrants having then been exercised into Shares at the Exercise Price will be appropriately adjustedin effect on the applicable record date or effective date, upwards or downwards, so that as the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change.case may be;
(bg) If the Company issues or sells any Additional Stock (as defined adjustments provided for in this Section 3(l) below) for a consideration less than Fair Value (as defined 4.1 are cumulative, and shall, in Section 3(c) herein) as the case of the date of execution of the binding written agreement providing for such issuance or sale, adjustments to the Exercise Price for the Warrant which was in effect immediately prior to each such issuance shall be reduced computed to the "Diluted Price". The Diluted nearest whole cent and shall apply to successive subdivisions, re-divisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided that, notwithstanding any other provision of this Section, no adjustment of the Exercise Price shall be calculated required unless such adjustment would require an increase or decrease of at least 1% in accordance with the following formula for any issuance of Additional Stock in a transaction triggering the rights afforded in this Section 3(b) (the "Trigger Transaction"). The product of the per share consideration and the number of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product of (i) the Exercise Price then in effect; provided, however, that any adjustments which by reason of this Section 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and
(subject to h) after any adjustment pursuant to this Section 3) 4.1, the term “Shares” where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and (ii) all prior adjustments pursuant to this Section 4.1, the quotient Registered Warrantholder is entitled to receive upon the exercise of (x) its Warrant, and the number of then outstanding shares of Common Stock on Shares indicated by any exercise made pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus Warrant shall be interpreted to mean the number of shares Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of Additional Stock that would have been issued for such adjustment and all prior adjustments pursuant to this Section 4.1, upon the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the full exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transactiona Warrant.
Appears in 1 contract
Samples: Warrant Indenture
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instance. With respect Section 4.1(a) (i), (ii) or (iii) being called a “Common Share Reorganization”) then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to any determination of adjustments in (i) or (iii) above be decreased in proportion to the number of shares outstanding Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of Common Stock the events referred to in (ii) above, be increased in proportion to the number of outstanding Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price which may be required by this Section 3, the Company's board of directors shall make a good faith determination regarding any adjustment.
(a) In the event of any change in the outstanding Common Stock of the Company due to stock dividends, consolidations, stock splits or reverse stock splits, the number of shares of Common Stock underlying the Warrant and/or the Exercise Price will be appropriately adjusted, upwards or downwards, so that the Holder thereafter shall be entitled to purchase the number of shares of Common Stock consistent with such change at an exercise price that is proportionate with such change.
(b) If the Company issues or sells any Additional Stock (as defined in Section 3(l) below) for a consideration less than Fair Value (as defined in Section 3(c) herein) as of the date of execution of the binding written agreement providing for such issuance or sale, the Exercise Price for the Warrant which was in effect immediately prior to each such issuance effective date or record date by a fraction, the numerator of which shall be reduced the number of Shares outstanding on such effective date or record date before giving effect to such Share Reorganization and the "Diluted Price"denominator of which shall be the number of Shares outstanding as of the effective date or record date after giving effect to such Share Reorganization (including, in the case where securities exchangeable for or convertible into Shares are distributed, the number of Share that would have been outstanding had such securities been exchanged for or converted into Shares on such record date or effective date). The Diluted Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date (a “Rights Offering”), the Exercise Price shall be calculated adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in accordance with effect on such record date by a fraction, of which the following formula numerator shall be the total number of Shares outstanding on such record date plus a number of Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any issuance Shares owned by or held for the account of Additional Stock the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Shares (or securities convertible or exchangeable into Shares) actually issued upon the exercise of such rights or warrants, as the case may be. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(b), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a transaction triggering fraction, of which the rights afforded numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 3(b4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates;
(c) if and whenever at any time during the "Trigger Transaction"). The product Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the per share consideration and the number holders of shares of Additional Stock issued in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product its outstanding Shares of (i) securities of any class, whether of the Exercise Price Corporation or any other entity (subject to adjustment pursuant to this Section 3) and other than Shares), (ii) the quotient of rights, options or warrants to subscribe for or purchase Shares (x) the number of then outstanding shares of Common Stock on or other securities convertible into or exchangeable for Shares), other than pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock that would have been issued for the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transaction.Rights Offering;
Appears in 1 contract
Samples: Warrant Indenture
Adjustment of Number of Shares and Exercise Price. The number subscription rights in effect under the Warrants for Shares issuable upon the exercise of shares of Common Stock underlying the Warrant and the Exercise Price Warrants shall be subject to adjustment from time to time as follows follows:
(a) if, at any time during the Adjustment Period, the Corporation shall:
(i) subdivide, re-divide or change its outstanding Shares into a greater number of Shares;
(ii) reduce, combine or consolidate its outstanding Shares into a lesser number of Shares; or
(iii) issue Shares or securities exchangeable for, or convertible into, Shares to all or substantially all of the holders of Shares by way of stock dividend or other distribution (other than a distribution of Shares upon the exercise of Warrants or any outstanding options); (any of such events in each applicable instanceSection 4.1(a) (i), (ii) or (iii) being called a “Share Reorganization”) then the Exercise Price in effect on the effective date of such Share Reorganization shall be adjusted to equal the price determined by multiplying the Exercise Price in effect immediately prior to such effective date or record date by a fraction of which the numerator shall be the total number of Shares outstanding immediately prior to such date and the denominator shall be the total number of Shares immediately after such date. With respect Such adjustment shall be made successively whenever any event referred to in this subsection (a) shall occur, and any determination such issue of adjustments Shares by way of a stock dividend shall be deemed to have been made on the record date for the stock dividend for the purpose of calculating the number of shares outstanding Shares under subsections (b) and (c) of Common Stock this Section 4.1. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Shares (or securities convertible or exchangeable into Shares) at a price per Share (or having a conversion or exchange price per Share) less than 95% of the Current Market Price on such record date, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price, and of which the denominator shall be total number of Shares outstanding on such record date plus the total number of additional Shares offered for subscription or purchase (or into which the convertible securities so offered are convertible); any Shares owned by or held for the account of the Corporation or any subsidiary (as defined in the Business Corporations Act (Ontario), of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any rights, options or warrants are not so issued or any such rights, options or warrants are not exercised prior to the expiration thereof, the Exercise Price shall then be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would then be in effect based upon the number and aggregate price of Shares (or securities convertible into Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be required by this be. Upon any adjustment of the Exercise Price pursuant to Section 34.1(a), the Company's board Exchange Rate shall be contemporaneously adjusted by multiplying the number of directors Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall make be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(c) if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of an issuance or distribution to all or substantially all the holders of its outstanding Shares of: (i) shares of any class, whether of the Corporation or any other corporation; (ii) rights, options or warrants to subscribe for or purchase Shares (or other securities convertible into Shares or property or assets) (excluding those referred to in subsection (b); or (iii) any property or other assets including evidence of indebtedness; then, and in each such case, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Shares outstanding on such record date multiplied by the Current Market Price on such record date, less the aggregate fair market value (as determined in good faith by the directors, which determination regarding shall be conclusive) of such shares, rights, options, warrants, evidence of indebtedness or assets so distributed, and of which the denominator shall be the total number of Shares outstanding on such record date multiplied by such Current Market Price; any Shares owned by or held for the account of the Corporation or any subsidiary (as defined in the Business Corporations Act (Ontario) of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall then be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or to the Exercise Price which would then be in effect based upon such shares, rights, options, warrants, evidences of indebtedness or assets actually distributed, as the case may be. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment.;
(ad) In If the event purchase price provided for in any right, warrant or option issued as described in Section 4.1(b) or Section 4.1(c) is decreased, or the price at which Shares are issued as described in Section 4.1(a) is decreased or the rate of conversion at which any change convertible securities which are issued as described in Section 4.1(a) is increased, the outstanding Common Stock Exercise Price shall, subject to Section 4.1(f), forthwith be changed so as to decrease the Exercise Price to such Exercise Price as would have been obtained had the adjustment made in connection with the issuance of all such rights, options or securities been made upon the basis of such purchase price as so decreased or such rate as so increased;
(e) if and whenever at any time during the Adjustment Period, there is a reclassification of the Company due Shares, a tender offer or an exchange or change of the Shares into other shares or a capital reorganization of the Corporation other than as described in Section 4.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity (other than a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity which does not result in any reclassification of the Company’s outstanding Shares or an exchange or change of the Shares into other shares), or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to stock dividendsany other body corporate, consolidationstrust, stock splits partnership or reverse stock splitsother entity, any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, upon the exercise of such right thereafter, shall be entitled to receive and shall accept, in lieu of the number of Shares that prior to such effective date the Registered Warrantholder would have been entitled to receive, the number of shares or other securities or property of Common Stock underlying the Corporation or of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation, arrangement, or consolidation, or to which such sale or conveyance may be made, as the case may be, that such Registered Warrantholder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the record date or the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Shares to which prior to such effective date it was entitled to acquire upon the exercise of the Warrants. If determined appropriate by the Warrant and/or Agent, relying on advice of Counsel, to give effect to or to evidence the provisions of this Section 4.1(e), the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Registered Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any shares, other securities or property to which a Registered Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(e) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
(f) in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after the record date and prior to completion of such event the additional Shares issuable by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder’s right to receive such additional Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Shares declared in favour of holders of record of Shares on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this Section 4.1(f), have become the holder of record of such additional Shares pursuant to Section 4.1;
(g) the adjustments provided for in this Section 4.1 are cumulative, and shall, in the case of adjustments to the Exercise Price will be appropriately adjustedcomputed to the nearest whole cent and shall apply to successive subdivisions, upwards re-divisions, reductions, combinations, consolidations, distributions, issues or downwardsother events resulting in any adjustment under the provisions of this Section 4.1, so that provided that, notwithstanding any other provision of this Section, no adjustment of the Holder thereafter shall be entitled to purchase Exercise Price or in the number of shares of Common Stock consistent with such change at an to be issued pursuant to the exercise price that is proportionate with such change.
(b) If the Company issues or sells any Additional Stock (as defined in Section 3(l) below) for a consideration less than Fair Value (as defined in Section 3(c) herein) as of the date Warrants shall be required unless such adjustment would result in a change of execution of the binding written agreement providing for such issuance or sale, at least 1% in the Exercise Price for the Warrant which was then in effect immediately prior to each such issuance shall be reduced to the "Diluted Price". The Diluted Price shall be calculated in accordance with the following formula for any issuance of Additional Stock in a transaction triggering the rights afforded in this Section 3(b) (the "Trigger Transaction"). The product of the per share consideration and or unless the number of shares to be issued would change by at least 1/100th of Additional Stock issued a share, provided, however, that any adjustments which, except for the provisions of this Section 4.1(h) would otherwise have been required to be made, shall be carried forward and taken into account in connection with the corresponding Trigger Transaction shall hereinafter be referred to as the "Transaction Price". The Diluted Price shall equal the product of any subsequent adjustment; and
(ih) the Exercise Price (subject to after any adjustment pursuant to this Section 3) 4.1, the term “ Shares” where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and (ii) all prior adjustments pursuant to this Section 4.1, the quotient Registered Warrantholder is entitled to receive upon the exercise of (x) his Warrant, and the number of then outstanding shares of Common Stock on Shares indicated by any exercise made pursuant to a fully diluted basis (assuming the exercise of all outstanding options, rights (including, without limitation, stock appreciation rights ("SARs")) and warrants and the conversion into Common Stock of all convertible securities) plus Warrant shall be interpreted to mean the number of shares Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of Additional Stock that would have been issued for such adjustment and all prior adjustments pursuant to this Section 4.1, upon the Transaction Price if the per share consideration in the Trigger Transaction had been equal to the Fair Value per Share as of the date of execution of the binding written agreement providing for the issuance of the Additional Stock, divided by (y) the number of then outstanding shares of Common Stock on a fully diluted basis (assuming the full exercise of all outstanding options, rights and warrants and the conversion into Common Stock of all convertible securities) plus the number of shares of Additional Stock issued in connection with the Trigger Transactiona Warrant.
Appears in 1 contract
Samples: Warrant Indenture
