Right to Repay Redemption Price in Common Shares. (a) Subject to the other provisions of this Section 4.6 and applicable regulatory approval, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price or an applicable portion thereof, to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, by 95% of the Current Market Price on the Redemption Date (the “Common Share Redemption Right”), (b) The Corporation will exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption Right. (c) The Corporation’s right to exercise the Common Share Redemption Right is conditional upon the following conditions being met on the Business Day preceding the Redemption Date: (i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will be made in accordance with Applicable Securities Legislation and such Common Shares will be issued as Freely Tradeable Common Shares; (ii) the listing of such additional Freely Tradeable Common Shares on each stock exchange on which the Common Shares are then listed; (iii) the Corporation being a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs; (iv) no Event of Default will have occurred and be continuing; (v) the receipt by the Debenture Trustee of an Officer’s Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and (vi) the receipt by the Debenture Trustee of an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive the conditions which are not satisfied by way of Extraordinary Resolution. (d) In the event that the Corporation duly exercises its Common Share Redemption Right, the Corporation will on or before 10:00 a.m. (Montréal time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, for delivery for and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled. (e) No fractional Common Shares will be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxes, if any). (f) A holder of Debentures will be treated as the Shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will hold the same in trust for the benefit of such holder. (g) The Corporation will at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon exercise by the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are issuable in such event. All Freely Tradeable Common Shares which are so issuable will be duly and validly issued as fully paid and non-assessable. (h) The Corporation will comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed. (i) The Corporation will from time to time promptly pay, or cause to be paid, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture. (j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will sell, or cause to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws. (k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 2 contracts
Samples: Trust Indenture (IntelGenx Technologies Corp.), Trust Indenture (IntelGenx Technologies Corp.)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory and stock exchange approvals, Section 2.5(e) and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price aggregate principal amount of the outstanding Debentures (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),; provided that, subject to the ability of the Corporation to exercise the Common Share Interest Payment Election in accordance with Article 10, all accrued and unpaid interest thereon shall be payable to the holder in cash.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice Notice, which will shall be delivered to the Debenture Trustee Trustees and the holders of Debentures not more than 60 days and not less than 30 40 days prior to the Redemption Date. The Redemption Notice will , and shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with U.S. Securities Laws and Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed or conditionally approved for listing on each stock exchange on which the Common Shares are then listed, the Toronto Stock Exchange or national securities exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occursLegislation;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of Trustees shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of Trustees shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price entirely in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way of Extraordinary Resolution.
(d) satisfied. In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustees for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(ed) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee Trustees for the account of the holders, at the time contemplated in this Section 4.5(a)4.6, the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (Date, provided, however, that the Corporation shall not be required to make any payment of less applicable Withholding Taxes, if any)than $5.00.
(fe) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee Trustees receives the same, it will they shall hold the same in trust for the benefit of such holder.
(gf) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-non- assessable.
(hg) The Corporation will shall comply with all U.S. Securities Laws and Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(ih) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustees for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will sell, or cause to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 1 contract
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals, the provisions governing the Debentures and the other provisions of this Section 4.6 and applicable regulatory approval10.06, the Corporation Company may, at its optionoption and subject to regulatory approval, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),.
(b) The Corporation will Company shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The CorporationCompany’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Canadian Securities Legislation and U.S. Securities Laws and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed on each a stock exchange on which the Common Shares are then listed, which may be the Toronto Stock Exchange or a National Securities Exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being Company shall be a reporting issuer in good standing under Applicable Canadian Securities Legislation where in all jurisdictions in which the distribution of Company is a reporting issuer on such Freely Tradeable Common Shares occursdate;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of Trustees shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of Trustees shall have received an opinion Opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will Company shall pay the Redemption Price in cash in accordance with Section 4.5 2.07 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. The Company may not change the form of Extraordinary Resolutioncomponents or percentage of consideration to be paid for the Debentures except as described in the preceding sentence. When the Company determines the actual number of the Common Shares to be issued pursuant to the Company’s exercise of its Common Share Redemption Right, it will issue a press release on a national newswire disclosing the Current Market Price and such actual number of Common Shares or otherwise provide notice directly to the holders of Debentures.
(d) In the event that the Corporation Company duly exercises its Common Share Redemption Right, the Corporation will Company shall on or before 10:00 11:00 a.m. (Montréal Calgary time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Canadian Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) Upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article III or any other place specified in the Redemption Notice, the Canadian Trustee, upon receipt of funds from the Company, shall pay the Debentureholders the Redemption Price in cash or Freely Tradeable Shares, or a combination thereof, as applicable.
(f) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will Company shall pay to the Debenture Canadian Trustee for the account of the holders, at the time contemplated in Section 4.5(a), the cash equivalent thereof determined on the basis of the relevant fraction of the Current Market Price of the a whole Common Shares Share on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(fg) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation Company of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Canadian Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(gh) The Corporation will Company shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the CorporationCompany’s Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(hi) The Corporation will Company shall comply with all Applicable Canadian Securities Legislation and U.S. Securities Laws regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(ij) If less than all the Debentures outstanding at any time are to be redeemed, or if a portion of the Debentures being redeemed are being redeemed for cash and a portion of the Debentures being redeemed are being redeemed by the payment of Freely Tradeable Common Shares, the Debentures to be so redeemed will be selected by the Canadian Trustee on a pro rata basis or in such other manner as the Canadian Trustee deems equitable.
(k) The Corporation will Company shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustees for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Supplemental Indenture.
(jl) If the Corporation Company elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 10.06 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Canadian Trustee, on the Written Direction of the Corporation Company but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the CorporationCompany, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder Company for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deductedwithheld, and will shall remit same on behalf of the Corporation Company to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 1 contract
Samples: Supplemental Indenture (Dirtt Environmental Solutions LTD)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares (which will be calculated based on the 20 consecutive trading days ending five days before the Redemption Date Date) (the “Common Share Redemption Right”),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed on each stock exchange on which the Common Shares are then listed, the TSX, a national securities exchange in Canada or a U.S. Securities Exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $US$1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price entirely in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. The Corporation may not change the form of Extraordinary Resolutioncomponents or percentage of consideration to be paid for the Debentures except as described in the preceding sentence. When the Corporation determines the actual number of the Common Shares to be issued pursuant to the Corporation’s exercise of its Common Share Redemption Right, it will issue a press release on a national newswire disclosing the Current Market Price and such actual number of Common Shares.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deductedwithheld, and will shall remit same on behalf of the Corporation to the proper tax authorities in the manner and within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on Each certificate representing Freely Tradeable Common Shares issued in payment of the Redemption Date will Price of Debentures bearing the U.S. Legend, as well as all certificates issued in exchange for or in substitution of the foregoing securities, shall bear the U.S. Legend; provided that if such Freely Tradeable Common Shares are being sold in compliance with the requirements of Rule 904 of Regulation S and in compliance with Canadian local laws and regulations, and provided that the Corporation is a “foreign issuer” within the meaning of Regulation S at the time of sale, the U.S. Legend may be paid removed by providing a declaration to the Trustee, as registrar and transfer agent for the Common Shares, substantially as set forth in Schedule “E” hereto (less applicable Withholding Taxesor as the Corporation or the Trustee may prescribe from time to time), together with any other evidence reasonably requested by the Corporation or Trustee, which evidence may include an opinion of counsel of recognized standing, in form and substance reasonably satisfactory to the Corporation and satisfactory to the Trustee, to the effect that the transfer is being made in compliance with Rule 904 of Regulation S; and provided further that, if any) any such Freely Tradeable Common Shares are being sold in accordance with Rule 144 under the 1933 Act, the U.S. Legend may be removed by delivery to holders the Trustee, as registrar and transfer agent for the Common Shares, of Debenturesan opinion of counsel of recognized standing, in cashform and substance reasonably satisfactory to the Corporation and satisfactory to the Trustee, in that the manner contemplated in Section 4.5U.S. Legend is no longer required under applicable requirements of the 1933 Act or applicable state securities laws. Provided that the Trustee obtains confirmation from the Corporation that such opinion is satisfactory to it, subject it shall be entitled to Article 10rely on such opinion without further inquiry.
Appears in 1 contract
Samples: Debenture Indenture (Molycorp, Inc.)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals, the provisions governing the 6.25% Debentures and the other provisions of this Section 4.6 and applicable regulatory approval10.06, the Corporation Company may, at its optionoption and subject to regulatory approval, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),.
(b) The Corporation will Company shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will shall also specify the aggregate principal amount of 6.25% Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The CorporationCompany’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Canadian Securities Legislation and U.S. Securities Laws and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed on each a stock exchange on which the Common Shares are then listed, which may be the Toronto Stock Exchange or a National Securities Exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being Company shall be a reporting issuer in good standing under Applicable Canadian Securities Legislation where in all jurisdictions in which the distribution of Company is a reporting issuer on such Freely Tradeable Common Shares occursdate;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of Trustees shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of 6.25% Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of Trustees shall have received an opinion Opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will Company shall pay the Redemption Price in cash in accordance with Section 4.5 2.07 unless the Debentureholders waive the conditions which are not satisfied by way of Extraordinary Resolution.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, the Corporation will on or before 10:00 a.m. (Montréal time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, for delivery for and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) No fractional Common Shares will be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxes, if any).
(f) A holder of Debentures will be treated as the Shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will hold the same in trust for the benefit of such holder.
(g) The Corporation will at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon exercise by the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are issuable in such event. All Freely Tradeable Common Shares which are so issuable will be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will from time to time promptly pay, or cause to be paid, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will sell, or cause to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.the
Appears in 1 contract
Samples: Second Supplemental Indenture (Dirtt Environmental Solutions LTD)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice Notice, which will shall be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 40 days prior to the Redemption Date. The Redemption Notice will , and which shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed on each stock exchange on which the Common Shares are then listed, the Toronto Stock Exchange or national securities exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. The Corporation may not change the form of Extraordinary Resolutioncomponents or percentage of consideration to be paid for the Debentures except as described in the preceding sentence. When the Corporation determines the actual number of the Common Shares to be issued pursuant to the Corporation’s exercise of its Common Share Redemption Right, it will issue a press release on a national newswire disclosing the Current Market Price and such actual number of Common Shares.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Calgary time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deductedwithheld, and will shall remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on Each certificate representing Freely Tradeable Common Shares issued in payment of the Redemption Date will Price of Debentures bearing the U.S. Legend, as well as all certificates issued in exchange for or in substitution of the foregoing securities, shall bear the U.S. Legend; provided that if the Freely Tradeable Common Shares are being sold in compliance with the requirements of Rule 904 of Regulation S, and provided that the Corporation is a “foreign issuer” within the meaning of Regulation S at the time of sale, the U.S. Legend may be paid (less removed by providing a declaration to the Trustee, as registrar and transfer agent for the Common Shares, as the Corporation or the Trustee may prescribe from time to time, together with any other evidence reasonably requested by the Corporation or Trustee, which evidence may include an opinion of counsel of recognized standing, in form and substance reasonably satisfactory to the Corporation or the Trustee, to the effect that the U.S. Legend is no longer required pursuant to the requirements of the 1933 Act or applicable Withholding Taxesstate securities laws; and provided further that, if any) any such securities are being sold within the United States in accordance with Rule 144 under the 1933 Act, the U.S. Legend may be removed by delivery to holders the Trustee, as registrar and transfer agent for the Common Shares, of Debenturesan opinion of counsel, in cashof recognized standing, in or other evidence reasonably satisfactory to the manner contemplated in Section 4.5Corporation, subject that the U.S. Legend is no longer required under applicable requirements of the 1933 Act or applicable state securities laws. Provided that the Trustee obtains confirmation from the Corporation that such counsel is satisfactory to Article 10it, it shall be entitled to rely on such opinion of counsel without further inquiry.
Appears in 1 contract
Samples: Convertible Debenture Indenture (Anderson Energy LTD)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory and/or stock exchange approvals, the provisions governing any series of Debentures and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Tradable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Tradable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “"Common Share Redemption Right”"),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will shall be delivered to the Debenture Trustee and the holders of Debentures to be so redeemed not more than 60 days and not less than 30 40 days prior to the Redemption DateDate in the manner provided in Section 14.2 and Section 14.3. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s 's right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Tradable Common Shares;
(ii) the listing of such additional Freely Tradeable Tradable Common Shares shall be listed (or approved for listing) on each stock exchange on which the Common Shares are then listed;
(iii) the Corporation being shall be a reporting issuer or the equivalent in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occursLegislation;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s 's Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (iii) and (iiiii) above have been satisfied and that, relying exclusively on certificates of good standing or lists on a list of reporting issuers not in default issued or maintained by the relevant securities authorities, condition (iiii) above is satisfied, except that the opinion in respect of condition (i) and (iii) need not be expressed with respect to those provinces where such certificates are not issued or lists are not issuedmaintained. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive waive, by Extraordinary Resolution, the conditions which are not satisfied by way satisfied. For greater certainty, if the foregoing conditions are met with respect to certain holders only, the Corporation will be entitled to exercise the Common Share Redemption Right in respect of Extraordinary Resolutionsuch holders, and shall pay the principal amount of the Debentures of the other holders in cash as aforementioned.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Sharesto the Trustee, for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled payment on the Redemption Date plus accrued and unpaid interest thereon up Date, at any place where a register is maintained pursuant to but excluding Article 3 or any other place specified in the Redemption Date (less applicable Withholding TaxesNotice, if any) and deliver to such holders certificates representing the Freely Tradable Common Shares to which such holders are entitled.
(e) No fractional Freely Tradable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Tradable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon exercise by the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are issuable in such event. All Freely Tradeable Common Shares which are so issuable will be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will from time to time promptly pay, or cause to be paid, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will sell, or cause to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 1 contract
Samples: Convertible Debenture Indenture
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals, the provisions governing any series of Debentures and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Tradable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Tradable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “"Common Share Redemption Right”"),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will shall be delivered to the Debenture Trustee and the holders of Debentures to be so redeemed not more than 60 days and not less than 30 40 days prior to the Redemption DateDate in the manner provided in Sections 14.2 and 14.3. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s 's right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation of the jurisdiction(s) in which the Common Shares are to be issued and such Common Shares will shall be issued as Freely Tradeable Tradable Common SharesShares in such jurisdiction(s);
(ii) the listing of such additional Freely Tradeable Tradable Common Shares shall be listed (or approved for listing) on each stock exchange on which the Common Shares are then listed;
(iii) the Corporation being shall be a reporting issuer or the equivalent in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Tradable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s 's Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $US$1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists on a list of reporting issuers not in default issued or maintained by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates are not issued or lists are not issuedmaintained. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. For greater certainty, if the foregoing conditions are met with respect to certain holders only, the Corporation will be entitled to exercise the Common Share Redemption Right in respect of Extraordinary Resolutionsuch holders, and shall pay the principal amount of the Debentures of the other holders in cash as aforementioned.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Sharesto the Trustee, for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled payment on the Redemption Date plus accrued and unpaid interest thereon up Date, at any place where a register is maintained pursuant to but excluding ARTICLE III or any other place specified in the Redemption Date (less applicable Withholding TaxesNotice, if any) and deliver to such holders of certificates representing the Freely Tradable Common Shares to which such holders are entitled.
(e) No fractional Freely Tradable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Tradable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s 's Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Tradable Common Shares as are shall be issuable in such event. All Freely Tradeable Tradable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Tradable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Tradable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Tradable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the Corporation, out of the Freely Tradeable Tradable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Tradable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will the Trustee shall deduct or withhold such net proceeds and remit same on behalf of the Corporation to the proper tax authorities appropriate governmental authority, as and when required within the period of time prescribed for this purpose under applicable laws. Any amounts of net proceeds (after payment of all costs) in excess of the amount required to cover applicable tax required by applicable law to be withheld or deducted will be remitted to the Debentureholder.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (paid, less applicable Withholding Taxeswithholding taxes, if any) , to holders of Debentures, in cash, in the manner contemplated in Section 4.5, 2.14 subject to Article 10.the ability of the Corporation to issue Shares as provided in ARTICLE X.
Appears in 1 contract
Samples: Convertible Debenture Indenture (Brigus Gold Corp.)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory and stock exchange approvals and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price aggregate principal amount of the outstanding Debentures (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),; provided that, subject to the ability of the Corporation to exercise the Common Share Interest Payment Election in accordance with Article 10, all accrued and unpaid interest thereon shall be payable to the holder in cash.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice Notice, which will shall be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 40 days prior to the Redemption Date. The Redemption Notice will , and shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s 's right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation and U.S. Securities Laws and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed or conditionally approved for listing on each stock exchange on which the Common Shares are then listed, the Toronto Stock Exchange or national securities exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s Officers' Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or defaulting reporting issuer lists of reporting issuers not in default issued maintained by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issuedmaintained. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price entirely in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way of Extraordinary Resolution.
(d) satisfied. In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(ed) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in this Section 4.5(a)4.6, the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (Date, provided, however, that the Corporation shall not be required to make any payment of less applicable Withholding Taxes, if any)than $5.00.
(fe) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(gf) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s 's Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-non- assessable.
(hg) The Corporation will shall comply with all Applicable Securities Legislation and U.S. Securities Laws regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(ih) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(ji) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will sell, or cause to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Each certificate representing Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash in payment of the Redemption PricePrice of U.S. Restricted Debentures, as well as all certificates issued in exchange for or in substitution of the foregoing securities, shall bear the U.S. Legend; provided that, if anysuch securities are being sold within the United States in accordance with Rule 144, if applicable, or another applicable exemption from registration under the 1933 Act, the U.S. Legend may be removed by delivery to the Trustee, as registrar and transfer agent for the Common Shares, of an opinion of Counsel, of recognized standing reasonably satisfactory to the Corporation in form and substance reasonably satisfactory to the Corporation that the U.S. Legend is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes no longer required to be withheld or deducted, and will remit same on behalf under applicable requirements of the 1933 Act and applicable state securities laws. Provided that the Trustee obtains confirmation from the Corporation that such Counsel is satisfactory to the proper tax authorities within the period it, it shall be entitled to rely on such opinion of time prescribed for this purpose under applicable lawsCounsel without further inquiry.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 1 contract
Right to Repay Redemption Price in Common Shares. (a) Subject to the other provisions of this Section 4.6 and applicable regulatory approval, the The Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Tradable Common Shares as is obtained by dividing the aggregate Redemption Price or an applicable portion thereofby $0.40 (the "Common Share Redemption Right"), subject to be satisfied by the issuance receipt of any required regulatory approvals and delivery the other provisions of Freely Tradeable Common Sharesthis Section 4.6, by 95% of including the following:
(i) for the first 12 months following the Escrow Release Date and prior to the Maturity Date, provided that the Current Market Price on at the time of the Redemption Notice is not less than $0.50, the Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at the Redemption Price plus interest for the first 12 months (i.e. $85 for each $1,000 principal amount of Debentures redeemed); and
(ii) after the first 12 months following the Escrow Release Date and prior to the Maturity Date, provided that the Current Market Price at the time of the Redemption Notice is not less than $0.50, the Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at the Redemption Price plus accrued and unpaid interest thereon up to (but excluding) the “Common Share Redemption Right”),Date.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will shall be delivered to the Debenture Trustee and the holders of Debentures to be so redeemed not more than 60 days and not less than 30 days prior to the Redemption DateDate in the manner provided in Sections 13.2 and 13.3. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s 's right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation of the jurisdiction(s) in which the Common Shares are to be issued and such Common Shares will shall be issued as Freely Tradeable Tradable Common SharesShares in such jurisdiction(s);
(ii) the listing of such additional Freely Tradeable Tradable Common Shares shall be listed (or approved for listing) on each stock exchange on which the Common Shares are then listed;
(iii) the Corporation being shall be a reporting issuer or the equivalent in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Tradable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s 's Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists on a list of reporting issuers not in default issued or maintained by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates are not issued or lists are not issuedmaintained. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. For greater certainty, if the foregoing conditions are met with respect to certain holders only, the Corporation will be entitled to exercise the Common Share Redemption Right in respect of Extraordinary Resolutionsuch holders, and shall pay the principal amount of the Debentures of the other holders in cash as aforementioned.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Sharesto the Trustee, for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled payment on the Redemption Date plus accrued and unpaid interest thereon up Date, at any place where a register is maintained pursuant to but excluding Article 3 or any other place specified in the Redemption Date (less applicable Withholding TaxesNotice, if any) and deliver to such holders of certificates representing the Freely Tradable Common Shares to which such holders are entitled.
(e) No fractional Freely Tradable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the $0.40 per Common Shares on the Redemption Date Share (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Tradable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s 's Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Tradable Common Shares as are shall be issuable in such event. All Freely Tradeable Tradable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Tradable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Tradable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Tradable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the Corporation, out of the Freely Tradeable Tradable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Tradable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will the Trustee shall deduct or withhold such net proceeds and remit same on behalf of the Corporation to the proper tax authorities appropriate governmental authority, as and when required within the period of time prescribed for this purpose under applicable laws. Any amounts of net proceeds (after payment of all costs) in excess of the amount required to cover applicable tax required by applicable law to be withheld or deducted will be remitted to the Debentureholder.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (paid, less applicable Withholding Taxeswithholding taxes, if any) , to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 102.9.
Appears in 1 contract
Samples: Convertible Debenture Indenture
Right to Repay Redemption Price in Common Shares. (a) Subject to the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price or an applicable portion thereof, to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “Common "Share Redemption Right”"),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will also shall specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s 's right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares to be issued on the exercise of the Common Share Redemption Right will be made in accordance with Applicable Securities Legislation and such Common Shares will be issued as being Freely Tradeable Common SharesTradeable;
(ii) the listing of such additional Freely Tradeable Common Shares on each stock exchange on which the Common Shares are then listed;
(iii) the Corporation being a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of an Officer’s 's Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces jurisdictions where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way of Extraordinary Resolutionsatisfied.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal time) Calgary Time on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Debenture Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) No fractional Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including dividends or distributions in kindCommon Share dividends) thereon and arising thereafterthereafter to which an shareholder of record of such Freely Tradeable Common Shares would be entitled, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon exercise by the Corporation of such Common 's Share Redemption Right, will and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise of the Share Redemption Right, such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are that shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Debenture Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this IndentureRight.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of exercises the Share Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 Right and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, due to the holder as a result of the redemption is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction Section 15.13 shall apply.
(k) Each certificate representing Freely Tradable Common Shares issued in payment of the Corporation but for Redemption Price of Debentures may have imprinted or otherwise reproduced thereon such legend or endorsement, not inconsistent with the account provisions of the holderthis Indenture, will sellas may be required to comply with any laws or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or any securities regulatory authority or to conform to general usage, or cause to all as may be sold through the investment banks, brokers or dealers specified determined by the Corporation, out of the Freely Tradeable Common Shares issued as conclusively evidenced by the Corporation for the account issue of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable lawscertificates.
(kl) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 1 contract
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares (which will be calculated based on the 20 consecutive trading days ending five days before the Redemption Date Date) (the “Common Share Redemption Right”),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed on each stock exchange on which the Common Shares are then listed, the Toronto Stock Exchange or national securities exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price entirely in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. The Corporation may not change the form of Extraordinary Resolutioncomponents or percentage of consideration to be paid for the Debentures except as described in the preceding sentence. When the Corporation determines the actual number of the Common Shares to be issued pursuant to the Corporation’s exercise of its Common Share Redemption Right, it will issue a press release on a national newswire disclosing the Current Market Price and such actual number of Common Shares.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Calgary time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deductedwithheld, and will shall remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on Each certificate representing Freely Tradeable Common Shares issued in payment of the Redemption Date will Price of Debentures bearing the U.S. Legend, as well as all certificates issued in exchange for or in substitution of the foregoing securities, shall bear the U.S. Legend; provided that if the Freely Tradeable Common Shares are being sold in compliance with the requirements of Rule 904 of Regulation S, and provided that the Corporation is a “foreign issuer” within the meaning of Regulation S at the time of sale, the U.S. Legend may be paid removed by providing a declaration to the Trustee, as registrar and transfer agent for the Common Shares, substantially as set forth in Schedule “E” hereto (less or as the Corporation or the Trustee may prescribe from time to time), together with any other evidence reasonably requested by the Corporation or Trustee, which evidence may include an opinion of counsel of recognized standing, in form and substance reasonably satisfactory to the Corporation or the Trustee, to the effect that the U.S. Legend is no longer required pursuant to the requirements of the 1933 Act or applicable Withholding Taxesstate securities laws; and provided further that, if any) any such securities are being sold within the United States in accordance with Rule 144 under the 1933 Act, the U.S. Legend may be removed by delivery to holders the Trustee, as registrar and transfer agent for the Common Shares, of Debenturesan opinion of counsel, in cashof recognized standing, in or other evidence reasonably satisfactory to the manner contemplated in Section 4.5Corporation, subject that the U.S. Legend is no longer required under applicable requirements of the 1933 Act or applicable state securities laws. Provided that the Trustee obtains confirmation from the Corporation that such counsel is satisfactory to Article 10it, it shall be entitled to rely on such opinion of counsel without further inquiry.
Appears in 1 contract
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory approvals and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “"Common Share Redemption Right”"),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice which will be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s 's right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed on each stock exchange on which the Common Shares are then listed, the Toronto Stock Exchange or the New York Stock Exchange or national securities exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of shall have received an Officer’s Officers' Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way satisfied. The Corporation may not change the form of Extraordinary Resolutioncomponents or percentage of consideration to be paid for the Debentures except as described in the preceding sentence. When the Corporation determines the actual number of the Common Shares to be issued pursuant to the Corporation's exercise of its Common Share Redemption Right, it will issue a press release on a national newswire disclosing the Current Market Price and such actual number of Common Shares.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Calgary time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(e) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be deducted, if any).
(f) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will shall hold the same in trust for the benefit of such holder.
(g) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s 's Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will shall comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustee for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax withholding tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes withholding taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxeswithholding taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will shall sell, or cause to be sold through the investment banks, brokers or dealers specified selected by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deductedwithheld, and will shall remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on Each certificate representing Freely Tradeable Common Shares issued in payment of the Redemption Date will Price of Debentures bearing the U.S. Legend, as well as all certificates issued in exchange for or in substitution of the foregoing securities, shall bear the U.S. Legend; provided that if the Freely Tradeable Common Shares are being sold in compliance with the requirements of Rule 904 of Regulation S, and provided that the Corporation is a "foreign issuer" within the meaning of Regulation S at the time of sale, the U.S. Legend may be paid removed by providing a declaration to the Trustee, as registrar and transfer agent for the Common Shares, substantially as set forth in Schedule E hereto (less or as the Corporation or the Trustee may prescribe from time to time), together with any other evidence reasonably requested by the Corporation or Trustee, which evidence may include an opinion of counsel of recognized standing, in form and substance reasonably satisfactory to the Corporation or the Trustee, to the effect that the U.S. Legend is no longer required pursuant to the requirements of the 1933 Act or applicable Withholding Taxesstate securities laws; and provided further that, if any) any such securities are being sold within the United States in accordance with Rule 144 under the 1933 Act, the U.S. Legend may be removed by delivery to holders the Trustee, as registrar and transfer agent for the Common Shares, of Debenturesan opinion of counsel, in cashof recognized standing, in or other evidence reasonably satisfactory to the manner contemplated in Section 4.5Corporation, subject that the U.S. Legend is no longer required under applicable requirements of the 1933 Act or applicable state securities laws. Provided that the Trustee obtains confirmation from the Corporation that such counsel is satisfactory to Article 10it, it shall be entitled to rely on such opinion of counsel without further inquiry.
Appears in 1 contract
Samples: Convertible Debenture Indenture (Advantage Oil & Gas Ltd.)
Right to Repay Redemption Price in Common Shares. (a) Subject to the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, subject to any required regulatory approval, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price in whole or in part by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price or an applicable portion thereof, to be satisfied by the issuance and delivery aggregate principal amount of Freely Tradeable Common Shares, Debentures being redeemed by 95% of the Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice set forth in Schedule B, which will shall be delivered to the Debenture Trustee and the holders of Debentures not more than 60 days and not less than 30 days prior to the Redemption Date. The Redemption Notice will shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption Right.
(c) The Corporation’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on or before the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares to be issued on the exercise of the Common Share Redemption Right will be made in accordance with Applicable Securities Legislation and such Common Shares will be issued as being Freely Tradeable Common SharesTradeable;
(ii) the conditional listing of such additional Freely Tradeable Common Shares on each stock exchange on which the Common Shares are then listedlisted subject only to customary conditions of listing;
(iii) the Corporation being a reporting issuer (or its equivalent) in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occurs;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of an Officer’s Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of an opinion of Counsel dated the Redemption Date to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Trust Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions condition (i) and above has been satisfied, relying exclusively on correspondence from the relevant stock exchange, that condition (ii) above have has been satisfied and thatsatisfied, and, relying exclusively on certificates of good standing issued, or reporting issuer lists of reporting issuers not in default issued maintained, by the relevant securities authorities, that condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces and territories where such certificates or reporting issuer lists are not issued. If the foregoing conditions are not satisfied at or prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay in cash 100% of the Redemption Price that would otherwise have been satisfied in cash Common Shares in accordance with Section 4.5 4.5, unless the Debentureholders waive the conditions which are not satisfied by way of Extraordinary Resolution.
(d) In the event that the Corporation duly exercises its Common Share Redemption Right, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior Redemption Date make the delivery to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Debenture Trustee for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures for payment on the Redemption Date at any place where a register is maintained pursuant to Article 3 or any other place specified in the Debenture TrusteeRedemption Notice, of certificates representing the Freely Tradeable Common Shares and a cheque representing accrued and unpaid interest to which such holders are entitledentitled (less any tax required to be withheld pursuant to Section 7.8, if any). From the Such Freely Tradeable Common Shares so deposited shall initially be registered in addition to amounts payable by the name of the Debenture Trustee pursuant to Section 4.5, in trust for the Debenture Trustee will, upon Debentureholders until such time as the due presentation and surrender of the Debentures, pay or cause to be paid to the holders holder of such Debentures has surrendered its Debentures or duly endorsed form of transfer to the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitledDebenture Trustee.
(e) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee for the account of the holders, at the time contemplated in Section 4.5(a4.6(d), the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (less applicable Withholding Taxesany tax required to be withheld, if any).
(f) A holder of Debentures will be treated as the Shareholder of record of the Freely Tradeable Common Shares issued on due exercise . Upon request by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee receives the same, it will hold the same in trust for the benefit of such holder.
(g) The Corporation will at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon exercise by the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are issuable in such event. All Freely Tradeable Common Shares which are so issuable will be duly and validly issued as fully paid and non-assessable.
(h) The Corporation will comply with all Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(i) The Corporation will from time to time promptly pay, or cause to be paid, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for shall provide, in writing to the account of Debenture Trustee, the holder, will sell, or cause price to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account paid in respect of such holder for this purpose, such specified number of Freely Tradeable fractional Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable lawsShares.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
Appears in 1 contract
Samples: Trust Indenture (Wi-Lan Inc.)
Right to Repay Redemption Price in Common Shares. (a) Subject to the receipt of any required regulatory and stock exchange approvals, Section 2.5(e) and the other provisions of this Section 4.6 and applicable regulatory approval4.6, the Corporation may, at its option, in exchange for or in lieu of paying the Redemption Price in money, elect to satisfy its obligation to pay all or any portion of the Redemption Price by issuing and delivering to holders on the Redemption Date that number of Freely Tradeable Common Shares obtained by dividing the Redemption Price aggregate principal amount of the outstanding Debentures (or an applicable portion thereof, thereof to be satisfied by the issuance and delivery of Freely Tradeable Common Shares, ) by 95% of the then Current Market Price of the Common Shares on the Redemption Date (the “Common Share Redemption Right”),; provided that, subject to the ability of the Corporation to exercise the Common Share Interest Payment Election in accordance with Article 10, all accrued and unpaid interest thereon shall be payable to the holder in cash.
(b) The Corporation will shall exercise the Common Share Redemption Right by so specifying in the Redemption Notice Notice, which will shall be delivered to the Debenture Trustee Trustees and the holders of Debentures not more than 60 days and not less than 30 40 days prior to the Redemption Date. The Redemption Notice will , and shall also specify the aggregate principal amount of Debentures in respect of which it is exercising the Common Share Redemption RightRight in such notice.
(c) The Corporation’s right to exercise the Common Share Redemption Right is shall be conditional upon the following conditions being met on the Business Day preceding the Redemption Date:
(i) the issuance of the Common Shares on the exercise of the Common Share Redemption Right will shall be made in accordance with U.S. Securities Laws and Applicable Securities Legislation and such Common Shares will shall be issued as Freely Tradeable Common Shares;
(ii) the listing of such additional Freely Tradeable Common Shares shall be listed or conditionally approved for listing on each stock exchange on which the Common Shares are then listed, the Toronto Stock Exchange or national securities exchange or quoted in an inter-dealer quotation system of any registered national securities association;
(iii) the Corporation being shall be a reporting issuer in good standing under Applicable Securities Legislation where the distribution of such Freely Tradeable Common Shares occursLegislation;
(iv) no Event of Default will shall have occurred and be continuing;
(v) the receipt by the Debenture Trustee of Trustees shall have received an Officer’s Officers’ Certificate stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and setting forth the number of Common Shares to be delivered for each $1,000 principal amount of Debentures and the Current Market Price of the Common Shares on the Redemption Date; and
(vi) the receipt by the Debenture Trustee of Trustees shall have received an opinion of Counsel to the effect that such Common Shares have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Redemption Price, will be validly issued as fully paid and non-assessable, that conditions (i) and (ii) above have been satisfied and that, relying exclusively on certificates of good standing or lists of reporting issuers not in default issued by the relevant securities authorities, condition (iii) above is satisfied, except that the opinion in respect of condition (iii) need not be expressed with respect to those provinces where such certificates or lists are not issued. If the foregoing conditions are not satisfied prior to the close of business on the Business Day preceding the Redemption Date, the Corporation will shall pay the Redemption Price entirely in cash in accordance with Section 4.5 unless the Debentureholders waive Debentureholder waives the conditions which are not satisfied by way of Extraordinary Resolution.
(d) satisfied. In the event that the Corporation duly exercises its Common Share Redemption Right, upon presentation and surrender of the Debentures for payment on the Redemption Date, at any place where a register is maintained pursuant to Article 3 or any other place specified in the Redemption Notice, the Corporation will shall on or before 10:00 11:00 a.m. (Montréal Toronto time) on the Business Day immediately prior to the Redemption Date, deliver to, or arrange through its transfer agent for Common Shares, Date make the delivery to the Trustees for delivery for to and on account of the holders, upon the due presentation and surrender of the Debentures to the Debenture Trustee, certificates representing the Freely Tradeable Common Shares to which such holders are entitled. From the Common Shares so deposited in addition to amounts payable by the Debenture Trustee pursuant to Section 4.5, the Debenture Trustee will, upon the due presentation and surrender of the Debentures, pay or cause to be paid to the holders of such Debentures the Redemption Price of the Debentures called for redemption in the amounts to which they are respectively entitled on the Redemption Date plus accrued and unpaid interest thereon up to but excluding the Redemption Date (less applicable Withholding Taxes, if any) and deliver to such holders the Common Shares to which such holders are entitled.
(ed) No fractional Freely Tradeable Common Shares will shall be delivered upon the exercise of the Common Share Redemption Right but, in lieu thereof, the Corporation will shall pay to the Debenture Trustee Trustees for the account of the holders, at the time contemplated in this Section 4.5(a)4.6, the cash equivalent thereof determined on the basis of the Current Market Price of the Common Shares on the Redemption Date (Date, provided, however, that the Corporation shall not be required to make any payment of less applicable Withholding Taxes, if any)than $5.00.
(fe) A holder of Debentures will shall be treated as the Shareholder shareholder of record of the Freely Tradeable Common Shares issued on due exercise by the Corporation of its Common Share Redemption Right effective immediately after the close of business on the Redemption Date, and will shall be entitled to all substitutions therefor, all income earned thereon or accretions thereto and all dividends or distributions (including distributions and dividends or distributions in kind) thereon and arising thereafter, and in the event that the Debenture Trustee Trustees receives the same, it will they shall hold the same in trust for the benefit of such holder.
(gf) The Corporation will shall at all times reserve and keep available out of its authorized Common Shares (if the number thereof is or becomes limited), solely for the purpose of issue and delivery upon the exercise of the Corporation’s Common Share Redemption Right as provided herein, and, upon and shall issue to Debentureholders to whom Freely Tradeable Common Shares will be issued pursuant to exercise by of the Corporation of such Common Share Redemption Right, will issue to Debentureholders such number of Freely Tradeable Common Shares as are shall be issuable in such event. All Freely Tradeable Common Shares which are shall be so issuable will shall be duly and validly issued as fully paid and non-assessable.
(hg) The Corporation will shall comply with all U.S. Securities Laws and Applicable Securities Legislation regulating the issue and delivery of Freely Tradeable Common Shares upon exercise of the Common Share Redemption Right and will shall cause to be listed and posted for trading such Common Shares on each stock exchange on which the Common Shares are then listed.
(ih) The Corporation will shall from time to time promptly pay, or cause make provision satisfactory to be paidthe Trustees for the payment of, all taxes and charges which may be imposed by the laws of Canada or any province thereof (except income tax, Withholding Tax or security transfer tax, if any) which will shall be payable with respect to the issuance or delivery of Freely Tradeable Common Shares to holders upon exercise of the Common Share Redemption Right pursuant to the terms of the Debentures and of this Indenture.
(j) If the Corporation elects to satisfy its obligation to pay all or any portion of the Redemption Price by issuing Freely Tradeable Common Shares in accordance with this Section 4.6 and if the Redemption Price (or any portion thereof) to which a holder is entitled is subject to Withholding Taxes and the amount of the cash payment of the Redemption Price, if any, is insufficient to satisfy such Withholding Taxes, the Debenture Trustee, on the Written Direction of the Corporation but for the account of the holder, will sell, or cause to be sold through the investment banks, brokers or dealers specified by the Corporation, out of the Freely Tradeable Common Shares issued by the Corporation for the account of such holder for this purpose, such specified number of Freely Tradeable Common Shares that together with the cash payment of the Redemption Price, if any, is sufficient to yield net proceeds (after payment of all costs) to cover the amount of taxes required to be withheld or deducted, and will remit same on behalf of the Corporation to the proper tax authorities within the period of time prescribed for this purpose under applicable laws.
(k) Interest accrued and unpaid on the Debentures on the Redemption Date will be paid (less applicable Withholding Taxes, if any) to holders of Debentures, in cash, in the manner contemplated in Section 4.5, subject to Article 10.
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