Adjustment of Number of Units. The rights to acquire Units in effect at any date attaching to the Special Warrants are subject to adjustment from time to time as follows: (a) if the Qualification Date has not occurred in a Designated Province on or before the Qualification Deadline, each Special Warrantholder in such Designated Province shall be entitled to acquire one Unit plus an additional 0.1 of a Unit per Special Warrant exercised or deemed exercised by such holder, subject to adjustment in accordance with the following provisions of this Article 4, at any time after the Qualification Deadline until the Expiry Time at no additional cost to or further action by the Special Warrantholder (the “Penalty Provision”); (b) if and whenever at any time from the date hereof and prior to the Expiry Time (the “Adjustment Period”), the Corporation: (i) subdivides, re-divides or changes its outstanding Common Shares into a greater number of shares; (ii) consolidates, reduces or combines its outstanding Common Shares into a smaller number of shares; or (iii) issues Common Shares or securities exchangeable for or convertible to Common Shares (“convertible securities”) to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than the issue of Common Shares or convertible securities to such holders as Dividends paid in the Ordinary Course); (any of the above being a “Common Share Reorganization”), the number of Units issuable upon the exercise of each Special Warrant is adjusted immediately after the effective date of the Common Share Reorganization or on the record date for the issue of Common Shares or convertible securities by way of stock dividend, by multiplying the number of Units previously obtainable on the exercise of a Special Warrant by the fraction of which: A. the numerator is the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization, or, in the case of the issuance of exchangeable or convertible securities, the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization plus the total number of Common Shares issuable upon conversion or exchange of such convertible securities; and B. the denominator is the total number of Common Shares outstanding immediately prior to the applicable effective or record date of such Common Share Reorganization; and the Corporation and Special Warrant Agent, upon receipt of notice pursuant to Section 4.3, shall make such adjustment successively whenever any event referred to in this Section 4.1(b) occurs and any such issue of Common Shares or convertible securities by way of a stock dividend is deemed to have occurred on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under this Section 4.1(b). To the extent that any convertible securities are not converted into or exchanged for Common Shares, prior to the expiration thereof, the number of Units obtainable under each Special Warrant shall be readjusted to the number of Units that is then obtainable based upon the number of Common Shares actually issued on conversion or exchange of such convertible securities; (c) if and whenever during the Adjustment Period the Corporation fixes a record date for the issue of rights, options or warrants to all or substantially all of the holders of Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (“Rights Period”), to subscribe for or acquire Common Shares at a price per share to the holder of less than 95% of the Current Market Price for the Common Shares on such record date (any of such events being called a “(e)”), then the number of Units obtainable upon the exercise of each Special Warrant is adjusted effective immediately after the end of the Rights Period to a number determined by multiplying the number of Units obtainable upon the exercise thereof immediately prior to the end of the Rights Period by a fraction: (i) the numerator of which is the number of Common Shares outstanding after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering; and (ii) the denominator of which is the aggregate of: A. the number of Common Shares outstanding as of the record date for the Rights Offering, and B. a number determined by dividing (1) the product of the number of Common Shares issued or subscribed during the Rights Period upon the exercise of the rights, warrants, or options under the Rights Offering and the price at which such Common Shares are offered by (2) the Current Market Price of the Common Shares as of the record date for the Rights Offering; (d) if and whenever during the Adjustment Period the Corporation issues or distributes to all or to substantially all of the holders of the Common Shares: (i) securities of the Corporation including rights, options or warrants to acquire shares of any class or securities exchangeable for or convertible into or exchangeable into any such shares or property or assets and including evidence of its indebtedness; or (ii) any property (including cash) or other assets, and if such issuance or distribution does not constitute Dividends paid in the Ordinary Course, a Common Share Reorganization or a Rights Offering (any of such non-excluded events being herein called a “Special Distribution”), the number of Units obtainable upon the exercise of each Special Warrant is adjusted effective immediately after the record date at which the holders of affected Common Shares are determined for purposes of the Special Distribution to a number determined by multiplying the number of Units obtainable upon the exercise thereof in effect on such record date by a fraction: (iii) the numerator of which is the number of Common Shares outstanding on such record date multiplied by the Current Market Price of the Common Shares on such record date; and (iv) the denominator of which is: A. the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date, less B. the fair market value on such record date, as determined by action by the directors (whose determination shall be conclusive), to the holders of the Common Shares of such securities or property or other assets so issued or distributed in the Special Distribution; (e) if and whenever during the Adjustment Period there is a reclassification of the Common Shares or a change in the Common Shares into other shares or securities, or a capital reorganization of the Corporation other than as described in Section 4.1(b) or the triggering of a shareholders’ rights plan or a 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 of such events being referred to as a “Capital Reorganization”, every Special Warrantholder who has not exercised its right of acquisition, as at the effective date of such Capital Reorganization is entitled to receive upon exercise in accordance with the terms and conditions hereof and shall accept, in lieu of the number of Units obtainable under the Special Warrants to which it was previously entitled, the kind and number of Units or other securities or property of the Corporation that the Special Warrantholder would have been entitled to receive on such Capital Reorganization, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Units obtainable upon the exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions of the same, as nearly as may be possible, as those contained in this Section 4.1. The Corporation shall not carry into effect any action requiring an adjustment pursuant to this Section 4.1(e) unless all necessary steps have been taken so that the Special Warrantholders are thereafter entitled to receive such kind and number of Units, other securities or property. The Corporation will not enter into a Capital Reorganization unless its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, prior to or contemporaneously with any such Capital Reorganization, enters into an indenture which provides, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Special Warrantholders to the end that the provisions set forth in this Indenture are correspondingly made applicable, as nearly as may reasonably be, with respect to any shares, other securities or property to which a Special Warrantholder is entitled on the exercise of his acquisition rights thereafter. An indenture entered into by the Corporation pursuant to the provisions of this Section 4.1(e) is deemed a supplemental indenture entered into pursuant to the provisions of Article 8. An indenture entered into between the Corporation, any successor to the Corporation or any purchasing body corporate, partnership, trust or other entity and the Special Warrant Agent must provide for adjustments which are as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which apply to successive Capital Reorganizations; (f) where this Section 4.1 requires that an adjustment becomes effective immediately after a record date or effective date, as the case may be, for an event referred to herein, the Corporation may defer, until the occurrence of that event, issuing to the Special Warrantholder exercising his acquisition rights after the record date or effective date, as the case may be and before the occurrence of that event the adjusted number of Units, other securities or property issuable upon the exercise or deemed exercise of the Special Warrants by reason of the adjustment required by that event. If the Corporation relies on this Section 4.1(f) to defer issuing an adjusted number of Units, other securities or property to a Special Warrantholder, the Special Warrantholder has the right to receive any distributions made on the adjusted number of Units, other securities or property declared in favour of holders of record on and after the date of exercise or such later date as the Special Warrantholder would but for the provisions of this Section 4.1(f), have become the holder of record of the adjusted number of Units, other securities or property; (g) the adjustments provided for in this Section 4.1 are cumulative. After any adjustment pursuant to this Section 4.1, the term “Units” where used in this Indenture is interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section, the Special Warrantholder is entitled to receive upon the exercise of his Special Warrant, and the number of Units obtainable in any exercise made pursuant to a Special Warrant is interpreted to mean the number of Units or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, upon the full exercise of a Special Warrant; (h) notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the Special Warrants if the issue of Common Shares is being made pursuant to any stock option or stock purchase plan in force from time to time for directors, officers or employees of the Corporation; (i) in the event of a question arising with respect to the adjustments provided for in this Section 4.1, that question shall be conclusively determined by the Corporation’s auditors or if they are unwilling or unable to act, such independent nationally recognized chartered accountants as may be selected by the directors of the Corporation, acting reasonably, who shall have access to all necessary records of the Corporation, and a determination by the Corporation’s auditors is binding upon the Corporation, the Special Warrant Agent, all Special Warrantholders and all other persons interested therein; and (j) no adjustment in the number of Units obtainable upon exercise of Special Warrants shall be made in respect of any event described in this Section 4.1, other than the events referred in clauses (i) and (ii) of Section (b) thereof, if the Special Warrantholders are entitled to participate in such event on the same terms, mutatis mutandis, as if the Special Warrantholders had exercised their Special Warrants prior to or on the effective date or record date of such event.
Appears in 2 contracts
Samples: Special Warrant Indenture (Niocorp Developments LTD), Special Warrant Indenture (Niocorp Developments LTD)
Adjustment of Number of Units. The rights to acquire Units in effect at any date attaching to the Special Warrants are subject to adjustment from time to time as follows:
(a) if If the Qualification Date has not occurred in a Designated Province on or before prior to 5:00 p.m. (PST) on the Qualification Deadlinedate that is 120 days following the Closing Date, each Special Warrantholder in such Designated Province shall be entitled to acquire one Unit plus an additional 0.1 of a Unit 1.1 Units per unexercised Special Warrant exercised or deemed exercised (the “Penalty Units”) by such holderautomatic exercise at the Expiry Time, each Penalty Unit being comprised of 1.1 Underlying Shares and 1.1 Underlying Warrants, provided however, that any fractional Penalty Unit entitled will be rounded down to the nearest whole Penalty Unit, subject to adjustment in accordance with the following provisions of this Article 4, at any time after the Qualification Deadline until the Expiry Time Date, at no additional cost to or further action by the Special Warrantholder (the “Penalty Provision”);
(b) if and whenever at any time from the date hereof Effective Date and prior to the Expiry Time (the “Adjustment Period”), the CorporationCompany:
(i) subdivides, re-divides or changes its outstanding Common Shares into a greater number of shares;
(ii) consolidates, reduces or combines its outstanding Common Shares into a smaller number of shares; or
(iii) issues Common Shares or securities exchangeable or exercisable for or convertible to Common Shares (“convertible securities”) to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than the issue of Common Shares or convertible securities to such holders as Dividends paid in the Ordinary Course); (any of the above being a “Common Share Reorganization”), the number of Units issuable upon the exercise of each Special Warrant is adjusted immediately after the effective date of the Common Share Reorganization or on the record date for the issue of such Common Shares or exchangeable, exercisable or convertible securities by way of stock dividend, by multiplying the number of Units previously obtainable on the exercise of a Special Warrant by the fraction of which:
A. the numerator is the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization, or, in the case of the issuance of exchangeable exchangeable, exercisable or convertible securities, the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization plus the total number of Common Shares issuable upon conversion conversion, exercise or exchange of such convertible securities; and
B. the denominator is the total number of Common Shares outstanding immediately prior to the applicable effective or record date of such Common Share Reorganization; , and the Corporation Company and Special Warrant Agent, upon receipt of notice pursuant to Section 4.3, shall make such adjustment successively whenever any event referred to in this Section 4.1(b4.1(c) occurs and any such issue of Common Shares or exercisable, exchangeable or convertible securities by way of a stock dividend is deemed to have occurred on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under this Section 4.1(b4.1(c). To the extent that any exercisable, exchangeable or convertible securities are not converted into or exercised or exchanged for Common Shares, prior to the expiration thereof, the number of Units obtainable under each Special Warrant shall be readjusted to the number of Units that is then obtainable based upon the number of Common Shares actually issued on conversion or exchange of such convertible securities;
(c) if and whenever during the Adjustment Period the Corporation Company fixes a record date for the issue of rights, options or warrants to all or substantially all of the holders of Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (“Rights Period”), to subscribe for or acquire Common Shares at a price per share to the holder of less than 9585% of the Current Market Price for the Common Shares on such record date (any of such events being called a “(e)Rights Offering”), then the number of Units obtainable upon the exercise of each Special Warrant is adjusted effective immediately after the end of the Rights Period to a number determined by multiplying the number of Units obtainable upon the exercise thereof immediately prior to the end of the Rights Period by a fraction:
(i) the numerator of which is the number of Common Shares outstanding after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering; and
(ii) the denominator of which is the aggregate of:
A. the number of Common Shares outstanding as of the record date for the Rights Offering, and
B. a number determined by dividing (1) the product of the number of Common Shares issued or subscribed during the Rights Period upon the exercise of the rights, warrants, or options under the Rights Offering and the price at which such Common Shares are offered by (2) the Current Market Price of the Common Shares as of the record date for the Rights Offering;
(d) if and whenever during the Adjustment Period the Corporation Company issues or distributes to all or to substantially all of the holders of the Common Shares:
(i) securities of the Corporation Company including rights, options or warrants to acquire shares of any class or securities exchangeable for or convertible into or exchangeable into any such shares or property or assets and including evidence of its indebtedness; or
(ii) any property (including cash) ), evidence of indebtedness or other assets, and if such issuance or distribution does not constitute Dividends paid in the Ordinary Course, a Common Share Reorganization or a Rights Offering (any of such non-excluded events being herein called a “Special Distribution”), the number of Units obtainable upon the exercise of each Special Warrant is adjusted effective immediately after the record date at which the holders of affected Common Shares are determined for purposes of the Special Distribution to a number determined by multiplying the number of Units obtainable upon the exercise thereof in effect on such record date by a fraction:
(iiii) the numerator of which is the number of Common Shares outstanding on such record date multiplied by the Current Market Price of the Common Shares on such record date; and
(ivii) the denominator of which is:
A. the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date, less
less B. the fair market value on such record date, as determined by action by of the directors (whose determination shall be conclusive), to the holders of the Common Shares of such securities or property property, indebtedness or other assets so issued or distributed in the Special Distribution;
(e) if and whenever during the Adjustment Period there is a reclassification of the Common Shares or a change in or exchange of the Common Shares into other shares or securities, or a capital reorganization of the Corporation Company other than as described in Section 4.1(b4.1(c) or the triggering of a shareholders’ rights plan or a consolidation, amalgamation, arrangement or merger of the Corporation Company 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 Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any of such events being referred to as a “Capital Reorganization”, every Special Warrantholder who has not exercised its right of acquisition, as at the effective date of such Capital Reorganization is entitled to receive upon exercise in accordance with the terms and conditions hereof and shall accept, in lieu of the number of Units obtainable under the Special Warrants to which it was previously entitled, the kind and number of Units or other securities or property of the Corporation Company that the Special Warrantholder would have been entitled to receive on such Capital Reorganization, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Units obtainable upon the exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions of the same, as nearly as may be possible, as those contained in this Section 4.1. The Corporation Company shall not carry into effect any action requiring an adjustment pursuant to this Section 4.1(e) unless all necessary steps have been taken so that the Special Warrantholders are thereafter entitled to receive such kind and number of Units, other securities or property. The Corporation Company will not enter into a Capital Reorganization unless its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, prior to or contemporaneously with any such Capital Reorganization, enters into an indenture which provides, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Special Warrantholders to the end that the provisions set forth in this Indenture are correspondingly made applicable, as nearly as may reasonably be, with respect to any shares, other securities or property to which a Special Warrantholder is entitled on the exercise of his acquisition rights thereafter. An indenture entered into by the Corporation Company pursuant to the provisions of this Section 4.1(e) is deemed a supplemental indenture entered into pursuant to the provisions of Article 8. An indenture entered into between the CorporationCompany, any successor to the Corporation Company or any purchasing body corporate, partnership, trust or other entity and the Special Warrant Agent must provide for adjustments which are as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which apply to successive Capital Reorganizations;
(f) where this Section 4.1 requires that an adjustment becomes effective immediately after a record date or effective date, as the case may be, for an event referred to herein, the Corporation Company may defer, until the occurrence of that event, issuing to the Special Warrantholder exercising his acquisition rights after the record date or effective date, as the case may be and before the occurrence of that event the adjusted number of Units, other securities or property issuable upon the exercise or deemed exercise of the Special Warrants by reason of the adjustment required by that event. If the Corporation Company relies on this Section 4.1(f) to defer issuing an adjusted number of Units, other securities or property to a Special Warrantholder, the Special Warrantholder has the right to receive any distributions made on the adjusted number of Units, other securities or property declared in favour of holders of record on and after the date of exercise or such later date as the Special Warrantholder would but for the provisions of this Section 4.1(f), have become the holder of record of the adjusted number of Units, other securities or property;
(g) the adjustments provided for in this Section 4.1 are cumulative. After any adjustment pursuant to this Section 4.1, the term “Units” where used in this Indenture is interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this SectionSection 4.1, the Special Warrantholder is entitled to receive upon the exercise of his Special Warrant, and the number of Units obtainable in any exercise made pursuant to a Special Warrant is interpreted to mean the number of Units or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, upon the full exercise of a Special Warrant;
(h) notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the Special Warrants if the issue of Common Shares is being made pursuant to any stock option or stock purchase plan in force from time to time for directors, officers or employees of the CorporationCompany;
(i) in the event of a question arising with respect to the adjustments provided for in this Section 4.1, that question shall be conclusively determined by the CorporationCompany’s auditors or if they are unwilling or unable to act, such independent nationally recognized chartered accountants as may be selected by the directors of the CorporationCompany, acting reasonablyreasonably and in good faith, who shall have access to all necessary records of the CorporationCompany, and a determination by the CorporationCompany’s auditors is binding upon the CorporationCompany, the Special Warrant Agent, all Special Warrantholders and all other persons interested therein; and
(j) no adjustment in the number of Units obtainable upon exercise of Special Warrants shall be made in respect of any event described in this Section 4.1, other than the events referred in clauses (i4.1(b)(i) and (ii) of Section (b) thereof4.1(b)(ii), if the Special Warrantholders are entitled to participate in such event on the same terms, mutatis mutandis, as if the Special Warrantholders had exercised their Special Warrants prior to or on the effective date or record date of such event.
Appears in 1 contract
Samples: Special Warrant Indenture
Adjustment of Number of Units. The rights to acquire Units in effect at any date attaching to the Special Warrants are subject to adjustment from time to time as follows:
(a) if the Qualification Date has not occurred in a Designated Province on or before the Qualification Deadline, each Special Warrantholder in such Designated Province shall be entitled to acquire one Unit plus an additional 0.1 of a Unit per Special Warrant exercised or deemed exercised by such holder, subject to adjustment in accordance with the following provisions of this Article 4, at any time after the Qualification Deadline until the Expiry Time at no additional cost to or further action by the Special Warrantholder (the “Penalty Provision”);
(b) if and whenever at any time from the date hereof and prior to the Expiry Time (the “Adjustment Period”)Automatic Exercise Time, the Corporation:Company:
(i) subdivides, re-divides or changes its outstanding Common Shares into a greater number of shares;
(ii) consolidates, reduces or combines its outstanding Common Shares into a smaller number of shares; or
(iii) issues Common Shares or securities exchangeable or exercisable for or convertible to into Common Shares (“convertible securities”) to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than the issue of Common Shares or convertible securities to such holders as Dividends paid in the Ordinary Course); dividend; (any of the above being a “Common Share Reorganization”), the number of Units issuable upon the exercise of each Special Warrant is shall be adjusted immediately after the effective date of the Common Share Reorganization or on the record date for the issue of Common Shares or convertible securities by way of stock dividend, by multiplying the number of Units previously obtainable on the exercise of a Special Warrant by the fraction of which:
A. (A) the numerator is the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization, or, in the case of the issuance of exchangeable or convertible securities, the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization plus the total number of Common Shares issuable upon conversion conversion, exercise or exchange of such convertible securities; and
B. (B) the denominator is the total number of Common Shares outstanding immediately prior to the applicable effective or record date of such Common Share Reorganization; and the Corporation Company and Special Warrant Agent, upon receipt of notice pursuant to Section 4.3, shall make such adjustment successively whenever any event referred to in this Section 4.1(b4.1(a) occurs and any such issue of Common Shares or convertible securities by way of a stock dividend is deemed to have occurred on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under this Section 4.1(b4.1(a). Any Common Shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purpose of any computation. To the extent that any convertible securities are not converted into or exchanged for Common Shares, prior to the expiration thereof, the number of Units obtainable under each Special Warrant shall be readjusted to the number of Units that is then obtainable based upon the number of Common Shares actually issued on conversion or exchange of such convertible securities;
(cb) if and whenever during at any time from the Adjustment Period date hereof and prior to the Corporation fixes Automatic Exercise Time the Company shall fix a record date for the issue of rights, options or warrants to all or substantially all of the holders of Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (“Rights Period”), to subscribe for or acquire Common Shares or convertible securities at a price per share (or having a conversion or exchange price per share) to the holder of less than 95% of the Current Market Price for the Common Shares on such record date (any of such events being called a “(e)Rights Offering”), then the number of Units obtainable upon the exercise of each Special Warrant is shall be adjusted effective immediately after the end of the Rights Period to a number determined by multiplying the number of Units obtainable upon the exercise thereof immediately prior to the end of the Rights Period by a fraction:fraction:
(i) the numerator of which is shall be the number of Common Shares outstanding after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period (or into which the convertible securities offered are convertible or exchangeable) upon exercise of the rights, warrants or options under the Rights Offering; and
(ii) the denominator of which is shall be the aggregate of:
A. (A) the number of Common Shares outstanding as of the record date for the Rights Offering, and; plus
B. (B) a number determined by dividing (1) the product of the number of Common Shares issued or subscribed during the Rights Period (or into which the convertible securities offered are convertible or exchangeable) upon the exercise of the rights, warrants, or options under the Rights Offering and the price at which such Common Shares are offered (or into which the convertible securities offered are convertible or exchangeable) by (2) the Current Market Price of the Common Shares as of the record date for the Rights Offering; Any Common Shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purpose of any computation. If all the rights, options or warrants are not so issued or if all rights, options or warrants are not exercised prior to the expiration thereof, the number of Units obtainable shall be readjusted to the number of Units obtainable in effect immediately prior to the record date and such number shall be further adjusted based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually delivered upon the exercise of the rights, options or warrants, as the case may be, but subject to any other adjustment required hereunder by reason of any event arising after that record date;
(dc) if and whenever during at any time from the Adjustment Period date hereof and prior to the Corporation issues Automatic Exercise Time the Company shall issue or distributes distribute to all or to substantially all of the holders of the Common Shares:
(i) securities of the Corporation Company including rights, options or warrants to acquire shares of any class or securities exchangeable for or exercisable for, or convertible into or exchangeable into into, any such shares or property or assets and including evidence of its indebtedness; or
(ii) any property (including cash) or other assets, and if such issuance or distribution does not constitute Dividends paid in the Ordinary Course, a Common Share Reorganization or a Rights Offering (any of such non-excluded events being herein called a “Special Distribution”), the number of Units obtainable upon the exercise of each Special Warrant is shall be adjusted effective immediately after the record date at which the holders of affected Common Shares are determined for purposes of the Special Distribution to a number determined by multiplying the number of Units obtainable upon the exercise thereof in effect on such record date by a fraction:fraction:
(iiiA) the numerator of which is shall be the number of Common Shares outstanding on such record date multiplied by the Current Market Price of the Common Shares on such record date; and
(ivB) the denominator of which isshall be:
A. (1) the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date, ; less
B. (2) the excess, if any, of (I) the fair market value on such record date, as determined by action by the directors (whose determination absent manifest error shall be conclusive), to the holders of the Common Shares of such securities or property or other assets so issued or distributed in the Special DistributionDistribution over (II) the fair market value of the consideration received therefor by the Company from the holders of the Common Shares, as determined by action by the directors (whose determination shall be conclusive);
(ed) if and whenever during at any time from the Adjustment Period date hereof and prior to the Automatic Exercise Time, there is a reclassification of the Common Shares or a change or exchange in the Common Shares into or for other shares or securities, or a capital reorganization of the Corporation Company other than as described in Section 4.1(b4.1(a) or the triggering of a shareholders’ rights plan or a consolidation, amalgamation, arrangement or merger of the Corporation Company 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 Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any of such events being referred to as a “Capital Reorganization”, every Special Warrantholder who has not exercised its right of acquisition, as at the effective date of such Capital Reorganization is entitled to receive upon exercise in accordance with the terms and conditions hereof and shall accept, in lieu of the number of Units obtainable under the Special Warrants to which it was previously entitled, the kind and number of Units or other securities or property of the Corporation Company or of the body corporate, trust, partnership or other entity resulting from the Capital Reorganization that the Special Warrantholder would have been entitled to receive on such Capital Reorganization, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Units obtainable upon the exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions of the same, as nearly as may be possible, as those contained in this Section 4.1. The Corporation Company shall not carry into effect any action requiring an adjustment pursuant to this Section 4.1(e4.1(d) unless all necessary steps have been taken so that the Special Warrantholders are thereafter entitled to receive such kind and number of Units, other securities securities, or property. The Corporation Company will not enter into a Capital Reorganization unless its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, prior to or contemporaneously with any such Capital Reorganization, enters into an indenture which provides, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Special Warrantholders to the end that the provisions set forth in this Indenture are correspondingly made applicable, as nearly as may reasonably bebe practicable, with respect to any shares, other securities or property to which a Special Warrantholder is entitled on the exercise of his or her acquisition rights thereafter. An indenture entered into by the Corporation Company pursuant to the provisions of this Section 4.1(e4.1(d) is deemed a supplemental indenture entered into pursuant to the provisions of Article 87. An indenture entered into between the CorporationCompany, any successor to the Corporation Company or any purchasing body corporate, partnership, trust or other entity and the Special Warrant Agent must provide for adjustments which are as nearly nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which apply to successive Capital Reorganizations;
(fe) where this Section 4.1 requires that an adjustment becomes effective immediately after a record date or effective date, as the case may be, for an event referred to herein, the Corporation Company may defer, until the occurrence of that event, issuing to the Special Warrantholder exercising his acquisition rights upon the exercise or automatic exercise of the Special Warrants after the record date or effective date, as the case may be and before the occurrence of that event event, the adjusted number of Units, other securities or property issuable upon the exercise or deemed automatic exercise of the Special Warrants by reason of the adjustment required by that event. If the Corporation Company relies on this Section 4.1(f4.1(e) to defer issuing an adjusted number of Units, other securities or property to a Special Warrantholder, the Company will first deliver to the Special Warrantholder, an appropriate instrument evidencing the right of such person to receive such securities or other property and the Special Warrantholder has the right to receive any distributions made on the adjusted number of Units, other securities or property declared in favour of holders of record on and after the date of exercise or such later date as the Special Warrantholder would but for the provisions of this Section 4.1(f4.1(e), have become the holder of record of the adjusted number of Units, other securities or property;property;
(gf) the adjustments provided for in this Section 4.1 are cumulative. After any adjustment pursuant to this Section 4.1, the term “Units” where used in this Indenture is interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section, the Special Warrantholder is entitled to receive upon the exercise of his or her Special Warrant, and the number of Units obtainable in any exercise made pursuant to a Special Warrant is interpreted to mean the number of Units or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, upon the full exercise of a Special Warrant;
(hg) notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the Special Warrants if the issue of Common Shares is being made pursuant to any stock option or stock purchase plan in force from time to time for directors, officers or employees employees, consultants or other service providers of the CorporationCompany, which plan has been approved by the directors of the Company;
(ih) in the event of a question arising with respect to the adjustments provided for in this Section 4.1, that question shall be conclusively determined by the Corporation’s auditors Auditors (or if they are unwilling or unable to act, such independent nationally recognized chartered accountants as may be selected by the directors of the CorporationCompany, acting reasonablyreasonably and in good faith), who shall have access to all necessary records of the CorporationCompany, and a determination by the Corporation’s such auditors is shall be binding upon the CorporationCompany, the Special Warrant Agent, all Special Warrantholders and all other persons interested therein; and
(ji) no adjustment in the number of Units obtainable upon the exercise or automatic exercise of Special Warrants shall be made in respect of any event described in this Section 4.1, other than the events referred in clauses (i) and (ii) of Section (b4.1(b) thereof, if the Special Warrantholders are entitled to participate in such event on the same terms, mutatis mutandis, as if the Special Warrantholders had exercised their Special Warrants prior to or on the effective date or record date of such event.
Appears in 1 contract
Samples: Special Warrant Indenture
Adjustment of Number of Units. The rights to acquire Units in effect at any date attaching to the Special Warrants are subject to adjustment from time to time as follows:
(a) if the Qualification Date has not occurred in a Designated Province on or before the Qualification Deadline, each Special Warrantholder in such Designated Province shall be entitled to acquire one Unit plus an additional 0.1 of a Unit per Special Warrant exercised or deemed exercised by such holder, subject to adjustment in accordance with the following provisions of this Article 4, at any time after the Qualification Deadline until the Expiry Time at no additional cost to or further action by the Special Warrantholder (the “Penalty Provision”);
(b) if and whenever at any time from the date hereof Effective Date and prior to the Expiry Time (the “"Adjustment Period”"), the CorporationCompany:
(i) subdivides, re-divides or changes its outstanding Common Shares into a greater number of shares;
(ii) consolidates, reduces or combines its outstanding Common Shares into a smaller number of shares; or
(iii) issues Common Shares or securities exchangeable or exercisable for or convertible to Common Shares (“"convertible securities”") to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend (other than the issue a distribution of Common Shares upon the exercise of Warrants or convertible securities to such holders as Dividends paid in the Ordinary Courseany outstanding options); (any of the above being a “"Common Share Reorganization”"), the number of Units Shares issuable upon the exercise of each Special Warrant is adjusted immediately after the effective date of the Common Share Reorganization or on the record date for the issue of such Common Shares or exchangeable, exercisable or convertible securities by way of stock dividend, by multiplying the number of Units previously obtainable on the exercise of a Special Warrant by the fraction of which:
A. the numerator is the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization, or, in the case of the issuance of exchangeable exchangeable, exercisable or convertible securities, the total number of Common Shares outstanding immediately after the effective or record date of the Common Share Reorganization plus the total number of Common Shares issuable upon conversion conversion, exercise or exchange of such convertible securities; and
B. the denominator is the total number of Common Shares outstanding immediately prior to the applicable effective or record date of such Common Share Reorganization; , and the Corporation Company and Special Warrant Agent, upon receipt of notice pursuant to Section 4.3, shall make such adjustment successively whenever any event referred to in this Section 4.1(b4.1(a) occurs and any such issue of Common Shares or exercisable, exchangeable or convertible securities by way of a stock dividend is deemed to have occurred on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares under this Section 4.1(b4.1(a). To the extent that any exercisable, exchangeable or convertible securities are not converted into or exercised or exchanged for Common Shares, prior to the expiration thereof, the number of Units obtainable under each Special Warrant shall be readjusted to the number of Units that is then obtainable based upon the number of Common Shares actually issued on conversion or exchange of such convertible securities;
(cb) if and whenever during the Adjustment Period the Corporation Company fixes a record date for the issue of rights, options or warrants to all or substantially all of the holders of Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (“"Rights Period”"), to subscribe for or acquire Common Shares at a price per share to the holder of less than 95% of the Current Market Price for the Common Shares on such record date (any of such events being called a “(e)”"Rights Offering"), then the number of Units obtainable upon the exercise of each Special Warrant is adjusted effective immediately after the end of the Rights Period to a number determined by multiplying the number of Units obtainable upon the exercise thereof immediately prior to the end of the Rights Period by a fraction:
(i) the numerator of which is the number of Common Shares outstanding after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering; and
(ii) the denominator of which is the aggregate of:
A. the number of Common Shares outstanding as of the record date for the Rights Offering, and
B. a number determined by dividing (1) the product of the number of Common Shares issued or subscribed during the Rights Period upon the exercise of the rights, warrants, or options under the Rights Offering and the price at which such Common Shares are offered by (2) the Current Market Price of the Common Shares as of the record date for the Rights Offering;
(dc) if and whenever during the Adjustment Period the Corporation Company issues or distributes to all or to substantially all of the holders of the Common Shares:
(i) securities of the Corporation Company including rights, options or warrants to acquire shares of any class or securities exchangeable for or convertible into or exchangeable into any such shares or property or assets and including evidence of its indebtedness; or
(ii) any property (including cash) ), evidence of indebtedness or other assets, and if such issuance or distribution does not constitute Dividends paid in the Ordinary Course, a Common Share Reorganization or a Rights Offering (any either of such non-excluded events being herein called a “"Special Distribution”"), the number of Units obtainable upon the exercise of each Special Warrant is adjusted effective immediately after the record date at which the holders of affected Common Shares are determined for purposes of the Special Distribution to a number determined by multiplying the number of Units obtainable upon the exercise thereof in effect on such record date by a fraction:
(iiii) the numerator of which is the number of Common Shares outstanding on such record date multiplied by the Current Market Price of the Common Shares on such record date; and
(ivii) the denominator of which is:
A. the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date, less
less B. the fair market value on such record date, as determined by action by of the directors (whose determination shall be conclusive, subject to CSE acceptance), to the holders of the Common Shares of such securities or property property, indebtedness or other assets so issued or distributed in the Special Distribution;
(ed) if and whenever during the Adjustment Period there is a reclassification of the Common Shares or a change in or exchange of the Common Shares into other shares or securities, or a capital reorganization of the Corporation Company other than as described in Section 4.1(b) or the triggering of a shareholders’ ' rights plan or a consolidation, amalgamation, arrangement or merger of the Corporation Company 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 Company as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any of such events being referred to as a “"Capital Reorganization”", every Special Warrantholder who has not exercised its right of acquisition, as at the effective date of such Capital Reorganization is entitled to receive upon exercise in accordance with the terms and conditions hereof and shall accept, in lieu of the number of Units obtainable under the Special Warrants to which it was previously entitled, the kind and number of Units or other securities or property of the Corporation Company that the Special Warrantholder would have been entitled to receive on such Capital Reorganization, if, on the record date or the effective date thereof, as the case may be, the Special Warrantholder had been the registered holder of the number of Units obtainable upon the exercise of Special Warrants then held, subject to adjustment thereafter in accordance with provisions of the same, as nearly as may be possible, as those contained in this Section 4.1. The Corporation Company shall not carry into effect any action requiring an adjustment pursuant to this Section 4.1(e4.1(d) unless all necessary steps have been taken so that the Special Warrantholders are thereafter entitled to receive such kind and number of Units, other securities or property. The Corporation Company will not enter into a Capital Reorganization unless its successor, or the purchasing body corporate, partnership, trust or other entity, as the case may be, prior to or contemporaneously with any such Capital Reorganization, enters into an indenture which provides, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Special Warrantholders to the end that the provisions set forth in this Indenture are correspondingly made applicable, as nearly as may reasonably be, with respect to any shares, other securities or property to which a Special Warrantholder is entitled on the exercise of his acquisition rights thereafter. An indenture entered into by the Corporation Company pursuant to the provisions of this Section 4.1(e4.1(d) is deemed a supplemental indenture entered into pursuant to the provisions of Article 8. An indenture entered into between the CorporationCompany, any successor to the Corporation Company or any purchasing body corporate, partnership, trust or other entity and the Special Warrant Agent must provide for adjustments which are as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which apply to successive Capital Reorganizations;
(fe) where this Section 4.1 requires that an adjustment becomes effective immediately after a record date or effective date, as the case may be, for an event referred to herein, the Corporation Company may defer, until the occurrence of that event, issuing to the Special Warrantholder exercising his acquisition rights after the record date or effective date, as the case may be and before the occurrence of that event the adjusted number of Units, other securities or property issuable upon the exercise or deemed exercise of the Special Warrants by reason of the adjustment required by that event. If the Corporation Company relies on this Section 4.1(f4.1(e) to defer issuing an adjusted number of Units, other securities or property to a Special Warrantholder, the Special Warrantholder has the right to receive any distributions made on the adjusted number of Units, other securities or property declared in favour of holders of record on and after the date of exercise or such later date as the Special Warrantholder would but for the provisions of this Section 4.1(f4.1(e), have become the holder of record of the adjusted number of Units, other securities or property;
(gf) the adjustments provided for in this Section 4.1 are cumulative. After any adjustment pursuant to this Section 4.1, the term “Units” "Shares" where used in this Indenture is interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this SectionSection 4.1, the Special Warrantholder is entitled to receive upon the exercise of his Special Warrant, and the number of Units obtainable in any exercise made pursuant to a Special Warrant is interpreted to mean the number of Units or other property or securities a Special Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, upon the full exercise of a Special Warrant;
(hg) notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the Special Warrants if the issue of Common Shares is being made pursuant to any stock option or stock purchase plan in force from time to time for directors, officers or employees of the CorporationCompany;
(ih) in the event of a question arising with respect to the adjustments provided for in this Section 4.1, that question shall be conclusively determined by the Corporation’s Company's auditors or if they are unwilling or unable to act, such independent nationally recognized chartered accountants as may be selected by the directors of the CorporationCompany, acting reasonablyreasonably and in good faith, who shall have access to all necessary records of the CorporationCompany, and a determination by the Corporation’s Company's auditors is binding upon the CorporationCompany, the Special Warrant Agent, all Special Warrantholders and all other persons interested therein; and
(ji) subject to CSE acceptance, no adjustment in the number of Units obtainable upon exercise of Special Warrants shall be made in respect of any event described in this Section 4.1, other than the events referred in clauses (iSections 4.1(b)(i) and (ii) of Section (b) thereof), if the Special Warrantholders are entitled to participate in such event on the same terms, mutatis mutandis, as if the Special Warrantholders had exercised their Special Warrants prior to or on the effective date or record date of such event.
Appears in 1 contract
Samples: Special Warrant Indenture
