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