EXHIBIT 3.11
STOCK OPTION AGREEMENT
THIS AGREEMENT made as of the 15th day of October, 1997.
B E T W E E N:
DURA PRODUCTS INTERNATIONAL INC.,
a company incorporated under the laws of
the Province of Ontario
(hereinafter called "Dura Products")
OF THE FIRST PART;
- and -
ENVIRONMENTAL COMPOSITE
PRODUCTS L.L.C.,
(hereinafter called "Woodco")
OF THE SECOND PART.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
sum of One Dollar ($1.00) and other good and valuable consideration now paid by
each of the parties hereto to the other (the receipt and sufficiency of which is
hereby acknowledged), the parties hereto agree as follows:
1. In this agreement:
"Closing Date" has the meaning attributed thereto in the Joint Venture
Agreement;
"common share" means the common shares without par value in the capital
stock of Dura Products as constituted at the date of this agreement;
"expiry date" means 4:30 p.m. (Toronto time) on the 20th business day
following the Closing Date;
"Joint Venture Agreement" means that certain agreement dated as of
September 23, 1997 among Woodco, Dura Products and various other
parties relating to the formation of a joint venture corporation to
manufacture, sell and distribute Duraskids in the territory defined
therein;
"optioned securities" has the meaning attributed thereto in section 2
hereof;
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"purchase price per share" means 85% of the closing market price of a
common share of Dura Products on the business day preceding the Closing
Date (as defined in the Joint Venture Agreement);
"unit" means a unit described in section 4 hereof consisting of a
common share and a share purchase warrant entitling the holder to
purchase common shares.
2. Subject to the provisions hereinafter set forth and subject to compliance
with applicable securities laws and the rules of any applicable stock exchange,
Dura Products hereby grants to Woodco an irrevocable and non-assignable option
to purchase that number of common shares of Dura Products (or as hereinafter
provided, units) (hereinafter called the "optioned securities") having an
aggregate minimum purchase price of $250,000 (Cdn.) and a maximum purchase price
of $1,000,000 (Cdn.). The option hereby granted shall be exercisable on one
occastion only.
3. If Woodco wishes to exercise the option granted in section 2 hereof for an
aggregate purchase price of $500,000 (Cdn.) or less but equal to or greater than
$250,000 (Cdn.), it shall exercise the said option and pay for the said common
shares prior to the expiry date and shall be entitled to receive, as hereinafter
provided, that number of common shares equal to the aggregate purchase price
tendered divided by the purchase price per share. Woodco shall not be entitled
to receive any fractional shares.
4. If Woodco wishes to exercise the option granted in section 2 hereof for an
aggregate purchase price of greater than $500,000 (Cdn.), it shall so notify
Dura Products in writing not later than 15 business days following the Closing
Date whereupon Woodco shall pay the aggregate purchase price therefor specified
in such notice not later than the expiry date and shall receive, as hereinafter
provided, units consisting of:
(a) that number of common shares equal to the aggregate purchase
price tendered divided by the purchase price per share; and
(b) a share purchase warrant entitling Woodco to purchase that
number of common shares equal to the aggregate purchase price
tendered in excess of $500,000 (Cdn.) divided by the purchase
price per share. The share purchase warrant shall expire 18
months following the date of issue and shall be exercisable at
a price equal to 125% of the market price of the common shares
on the date of issue.
Any exercise of the option granted in section 2 hereof for an aggregate purchase
price of greater than $500,000 (Cdn.) shall be in multiples of $50,000 (Cdn.).
5. The option hereby granted shall be exercisable by Woodco tendering a notice
in writing at the executive offices of Dura Products in Toronto, specifying the
number of common shares (or, if applicable, units) being purchased, together
with a certified cheque in favour of Dura Products in an amount equal to the
full purchase price of the number of common shares (or units) so specified. Upon
any such exercise of option as aforesaid, Dura Products shall forthwith cause
the Transfer Agent and Registrar of Dura Products to deliver to Woodco, as soon
as practicable thereafter, a certificate or certificates in the name of Woodco
representing in the aggregate such number of common shares (and, if applicable,
a share purchase warrant substantially in the form annexed hereto) as Woodco
shall have then paid for.
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6. Except with the prior consent of Dura Products but subject in all events to
applicable securities laws and the requirements of any applicable stock
exchanges, Woodco shall not sell, transfer or otherwise dispose of any of common
shares acquired pursuant to the exercise of the option herein granted prior to
the date which is 18 months after the date of the exercise thereof.
7. Nothing herein contained or done pursuant hereto shall obligate Woodco to
purchase and/or pay for any optioned securities except those optioned securities
in respect of which Woodco shall have exercised its option to purchase hereunder
in the manner hereinbefore provided.
8. In the event of any subdivision or redivision of the common shares of Dura
Products at any time prior to the expiry date into a greater number of common
shares or the payment by Dura Products of a stock dividend, Dura Products shall
deliver at the time of any exercise thereafter of the option hereby granted such
additional number of common shares as would have resulted from such subdivision
or redivision or would have been received as a result of such stock dividend as
the case may be, if such exercise of the option hereby granted had been prior to
the date of such subdivision or redivision. In the event of any consolidation or
change of the common shares of Dura Products at any time prior to the expiry
date into a lesser number of common shares, the number of common shares
deliverable by Dura Products on any exercise thereafter of the option hereby
granted shall be reduced to such number of common shares as would have resulted
from such consolidation or change if such exercise of the option hereby granted
had been prior to the date of such consolidation or change.
9. Woodco shall have no right whatsoever as a shareholder in respect of any of
the optioned securities (including any right to receive dividends or other
distribution therefrom or thereon).
10. Time shall be of the essence of this agreement.
11. This agreement shall enure to the benefit of and be binding upon Dura
Products, its successors and assigns. This agreement shall not be assignable by
Woodco.
12. This agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the Province of Ontario
and the federal laws of Canada applicable therein. Each of the parties hereto
hereby irrevocably attorns to the jurisdiction of the courts of the Province of
Ontario.
IN WITNESS WHEREOF this agreement has been executed by the parties
hereto.
SIGNED, SEALED AND DELIVERED) DURA PRODUCTS INTERNATIONAL
) INC.
)
in the presence of ) Per:________________________
)
) Per:________________________
)
) ENVIRONMENTAL COMPOSITE
) PRODUCTS L.L.C.
)
Per:________________________
DURA PRODUCTS INTERNATIONAL INC.
SHARE PURCHASE WARRANT
THIS WARRANT WILL BE VOID AND OF NO VALUE UNLESS EXERCISED ON OR BEFORE 4:30
P.M. TORONTO TIME IN TORONTO ON ____, 199_.
THIS IS TO CERTIFY THAT for value received, Environmental Composite
Products L.L.C. (the "holder" or "registered holder"), being the holder of this
Share Purchase Warrant (the "Warrant") is entitled to purchase at any time and
from time to time on or before the close of business on o , 199o (the "Expiry
Date") ___________________fully paid and non-assessable common shares without
nominal or par value (the "Common shares") of Dura Products International Inc.
(the "Corporation"), subject to the terms and conditions hereinafter referred to
and at the subscription price of $o (Canadian funds) per Common Share, or such
other amount as may be determined from time to time pursuant to the provisions
of Schedule "A" hereto (the "Exercise Price"), payable as hereinafter provided
(the aggregate purchase price of those Common Shares in respect of which this
Warrant is exercised in whole or in part each time this Warrant is exercised is
hereinafter called the "Aggregate Purchase Price").
The right to purchase Common Shares of the Corporation under this
Warrant may only be exercised by the holder on or before the Expiry Date by:
(a) duly completing and executing the subscription in the form
attached as Schedule "B" hereto; and
(b) surrendering this Warrant to the Corporation, at its office in
Toronto, together with a bank draft or certified cheque
payable to the order of the Corporation, at par in Toronto, in
the amount of the Aggregate Purchase Price.
Upon surrender and payment, the holder shall be deemed for all purposes
to be the holder of record of the Common Shares. The Corporation covenants that
it will forthwith cause a certificate or certificates representing the Common
Shares to be mailed to the holder at the address specified in the subscription
form.
The holder may subscribe for and purchase any lesser number of Common
Shares than the number of Common Shares purchasable under this Warrant and in
such event shall be entitled to receive a new Warrant in respect of the balance
of the Common Shares purchasable under this Warrant not then subscribed for and
purchased.
The terms and conditions pertaining to this Warrant are set forth in
Schedule "A" hereto, the provisions of which are hereby incorporated by
reference into this Warrant.
The holding of this Warrant shall not make the holder a shareholder of
the Corporation and does not entitle the holder to any right or interest with
respect thereto except as expressly provided herein.
THE COMMON SHARES REFERRED TO IN THIS WARRANT ARE BEING OFFERED IN
CANADA BUT NOT IN THE UNITED STATES OF AMERICA OR ITS TERRITORIES OR
POSSESSIONS. THE ISSUANCE AND DELIVERY OF THIS WARRANT ARE NOT AND UNDER NO
CIRCUMSTANCES ARE TO BE CONSTRUED AS AN OFFERING OF ANY SUCH COMMON SHARES FOR
SALE IN THE UNITED STATES OF AMERICA OR ANY TERRITORY OR POSSESSION THEREOF OR A
SOLICITATION OF AN OFFER FROM ANY UNITED STATES RESIDENT TO BUY ANY OF SUCH
COMMON SHARES. THE COMMON SHARES IN RESPECT OF WHICH THIS WARRANT IS ISSUED ARE
NOT REGISTERED UNDER THE SECURITIES ACT XX 0000 XX XXX XXXXXX XXXXXX AND
AMENDMENTS THERETO.
DURA PRODUCTS INTERNATIONAL INC.
Per: _____________________________________
Authorized Officer
Per:______________________________________
Authorized Officer
SCHEDULE "A"
TERMS AND CONDITIONS ATTACHING TO THE
SHARE PURCHASE WARRANT OF
DURA PRODUCTS INTERNATIONAL INC.
ARTICLE I
INTERPRETATION
Section 1.01 Definitions
In the following provisions applicable to the within Warrant, and
except as the context otherwise requires:
"Aggregate Purchase Price" means the Exercise Price then in effect
multiplied by the number of Common Shares in respect of which this
Warrant is exercised in whole or in part each time the Warrant is
exercised;
"Common Shares" means fully paid and non-assessable common shares of
the Corporation and, except where the context hereof otherwise
requires, includes Common Shares to be issued upon the exercise of the
Warrant;
"Current Market Price" means, as at any date when the Current Market
Price is to be determined, the weighted average price at which the
Common Shares have been traded on a Stock Exchange during the 20
consecutive trading days ending not more than 5 days immediately
preceding such date. In the event the Common Shares are not traded on a
Stock Exchange, but are then quoted on the Canadian Dealing Network
Inc., as at any date when the Current Market Price is to be determined,
the weighted average price at which the Common Shares have been quoted
on the Canadian Dealing Network Inc. during the twenty consecutive
trading days ending not more than five days immediately preceding such
date. In the event the Common Shares are not quoted on the Canadian
Dealing Network Inc., the Current Market Price thereof shall be
determined by the board of directors of the Corporation, which
determination shall be conclusive;
"Exercise Price" means the price for which Common Shares may be
purchased upon the exercise of the Warrant, which price shall initially
be the sum of $o per Common Share [125% of the closing price on the
business date preceding the date of issue], subject to adjustment as
hereinafter provided in Section 5.01;
"Expiry Date" means 4:30 p.m., Toronto time, ono , 199o [insert date
which is 18 months from date of issue];
"Stock Exchange" means a stock exchange in Canada on which the Common
Shares are listed and in the event the Common Shares are listed on more
than one stock exchange in Canada, any reference to a Stock Exchange
shall be deemed to be a reference to such stock exchange as shall be
designated by the board of directors of the Corporation;
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"Warrant" means the share purchase warrant attached hereto in
registered form entitling the holder thereof, upon tender thereof and
payment of the Exercise Price, to subscribe for o Common Shares,
subject to adjustment as hereinafter provided in Section 5.01; and
"Warrantholder" or "holder" means the holder of the Warrant attached
hereto;
Section 1.02 Weekends and Holidays
If the date for the taking of any action hereunder is a Saturday,
Sunday or a legal holiday, such action shall be taken on the next succeeding
business day with the force and effect as if made on the nominal date.
Section 1.03 Time
Time shall be of the essence hereof and of the Warrant issued
hereunder.
Section 1.04 Applicable Law
This Schedule and the Warrant shall be construed in accordance with the
laws of the Province of Ontario and shall be treated in all respects as Ontario
contracts.
ARTICLE II
ISSUE OF WARRANT
Section 2.01 Form and Terms of Warrant
The Warrant shall entitle the holder thereof to subscribe, on or before
the Expiry Date, o Common Shares in accordance with the provisions of Article IV
hereof, subject to adjustment as hereinafter provided in Section 5.01.
Section 2.02 Ownership of Warrant
The Corporation may deem and treat the registered holder of the Warrant
as the absolute owner thereof for all purposes and the Corporation shall not be
affected by any notice to the contrary. The registered holder of the Warrant
shall be entitled to the rights and privileges attaching thereto and the issue
of Common Shares by the Corporation upon exercise of the Warrant by the
registered holder thereof in accordance with the terms and conditions herein
contained shall discharge all responsibilities of the Corporation with respect
to such Warrant, and the Corporation shall not be bound to inquire into the
title of any such registered holder.
Section 2.03 Warrantholder Not a Shareholder
The Warrantholder shall not, as such, be deemed or regarded as a
shareholder of the Corporation nor shall such Warrantholder be entitled to any
right or interest except as is expressly provided in this Schedule and the
Warrant.
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Section 2.04 Enforcement of Warrantholder's Rights
It is expressly agreed and declared that the obligations under this
Schedule and the Warrant are solely corporate obligations of the Corporation and
that no personal liability whatsoever shall attach to or be incurred by a
present or former shareholder, officer or director of the Corporation. All
rights and claims against a shareholder, officer or director of the Corporation
are expressly waived as a condition of and as consideration for the issuance of
the Warrant.
Section 2.05 Loss, Mutilation, Destruction or Theft of Warrant
If the Warrant is lost, mutilated, destroyed or stolen, the Corporation
may, on such reasonable terms as to cost and indemnity or otherwise as it may
impose, issue and sign a new Warrant similar as to denomination, tenor and date
as the Warrant so lost, mutilated, destroyed or stolen.
ARTICLE III
COVENANTS OF THE CORPORATION
The Corporation covenants and agrees with the Warrantholder that so
long as the Warrant remains outstanding:
Section 3.01 To Reserve Common Shares
The Corporation is duly authorized to create and issue the Warrant and
the Warrant is valid and enforceable against the Corporation and, subject to the
provisions hereof, the Corporation will cause the Common Shares from time to
time subscribed for and purchased pursuant to the exercise of the Warrant, and
the certificates representing such Common Shares, to be duly issued. At all
times prior to the Expiry Date, while the Warrant is outstanding, the
Corporation shall reserve and there shall remain unissued out of its authorized
capital a number of Common Shares or other securities sufficient to enable the
Corporation to meet its obligation to issue Common Shares or other securities
pursuant to the exercise of the Warrant from time to time. All Common Shares
issued upon exercise of the Warrant shall be issued as fully paid and
non-assessable.
Section 3.02 To Execute Further Assurances
The Corporation will do, execute, acknowledge and deliver or cause to
be done, executed, acknowledged and delivered, all other acts, deeds and
assurances in law as may reasonably require for better accomplishing and
effecting the intentions and provisions hereof.
Section 3.03 To Give Notice of Certain Events
So long as the Warrant is outstanding, the Corporation will give to the
holder at least 14 days' prior notice of the effective date or record date of
any event which gives rise to an adjustment pursuant to Section 5.01. Any such
notice shall be sufficiently given if given in accordance with Section 6.01. The
Corporation further covenants and agrees that it will not within the said notice
periods take any corporate action which would deprive the holder of the
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Warrant of the opportunity of exercising the right to purchase Common Shares
during the said periods and thereby to participate as a shareholder in respect
to any of the matters referred to in this Section.
ARTICLE IV
EXERCISE AND CANCELLATION OF WARRANT
Section 4.01 Exercise of Warrant
The Warrantholder who desires to exercise the Warrant shall, prior to
the Expiry Date: (a) duly complete and execute the subscription in the form
attached as Schedule "B" hereto; (b) surrender the Warrant to the Corporation at
its principal office in the Municipality of Metropolitan of Toronto; and (c) pay
the Aggregate Purchase Price by bank draft or certified cheque payable to the
Corporation at par in Toronto.
If any of the Common Shares subscribed for are to be issued to a person
other than the Warrantholder, the Warrantholder shall pay the requisite transfer
fees and charges, if any, to the Corporation. Upon surrender and payment, as
aforesaid, the person in whose name the Common Shares are to be issued, as
specified in the subscription form, shall be deemed for all purposes (except in
respect of the right to receive notice of any meeting if the record date for
notice of the meeting is prior to the date the person is registered as a
shareholder on the books of the Corporation) to be the holder of record of the
Common Shares issued to such person and shall be entitled to delivery of a
certificate representing the Common Shares.
Subject to the provisions of Section 4.03, the Corporation shall cause
the certificate to be mailed to the person at the address specified in the
subscription form within 10 days of the surrender of the Warrant and payment of
the Aggregate Purchase Price and requisite transfer fees and charges.
Section 4.02 Partial Exercise of Warrant
The Warrantholder may subscribe for and purchase a lesser number of
Common Shares than the number of Common Shares purchasable under the Warrant, in
which case the Warrantholder shall be entitled to receive a new Warrant in
respect of the Common Shares purchasable under the said Warrant and not then
subscribed for and purchased, and the Corporation shall issue a new Warrant upon
surrender of such Warrant, if satisfied that the new Warrant is properly
issuable.
Section 4.03 Postponement of Delivery of Certificate
The Corporation shall not be required to deliver certificates for
Common Shares during the period when the stock transfer books of the Corporation
are closed due to an impending meeting of shareholders or a proposed payment of
dividends or for any other purpose and, in the event of a surrender of the
Warrant for the purchase of Common Shares during such period, the delivery of
certificates may be postponed for a period not exceeding 10 days after the date
of the reopening of the stock transfer books.
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Section 4.04 Warrant Void After Expiry Date
After the Expiry Date, no holder of an unexercised Warrant shall have
any rights under the Warrant, and the Warrant shall be void and of no value or
effect. All provisions of the Warrant and of this Schedule are subject to this
Section.
Section 4.05 Hold Period Attached to Common Shares
Except with the prior consent of the Corporation but subject in all
events to applicable securities laws and the requirements of any applicable
stock exchanges, by its acceptance of the Warrant, the holder shall not sell,
transfer or otherwise dispose of any of Common Shares acquired pursuant to the
exercise of the Warrant prior to the date which is 18 months after the date of
the exercise thereof.
ARTICLE V
ADJUSTMENT PROVISIONS
Section 5.01 Adjustment of Subscription Rights
The subscription rights under the Warrant shall be subject to
adjustment from time to time as follows:
(a) in the event the Corporation shall, at any time while the Warrant is
outstanding:
(i) subdivide its outstanding Common Shares into a greater number of
shares;
(ii) combine or consolidate its outstanding Common Shares into a
smaller number of shares; or
(iii) issue Common Shares, or securities exchangeable for or
convertible into Common Shares to the holders of any of its
outstanding shares by way of a stock dividend;
the Exercise Price shall be adjusted effective immediately after the
record date at which the holders of Common Shares are determined for
the purposes of any of the foregoing events to a price determined by
multiplying the Exercise Price in effect on such record date by a
fraction, the numerator of which shall be the number of Common Shares
outstanding on such record date, and the denominator shall be the
number of Common Shares outstanding after the completion of the
applicable event, including in the case where securities exchangeable
for or convertible into Common Shares are distributed, the number of
Common Shares that would have been outstanding had the securities been
exchanged for or converted into Common Shares on such record date. Such
adjustments shall be made successively whenever any event referred to
in this Section 5.01 shall occur and any such issuance of securities by
way of a stock dividend shall be deemed to have been made on the record
date for the stock dividend for the purpose of calculating the number
of outstanding Common Shares under this Section 5.01.
(b) In the event the Corporation shall fix a record date for the issuance
of rights, options or warrants, other than options issued to employees
pursuant to a stock option or stock
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purchase plan approved by the directors of the Corporation, to all or
substantially all the holders of its outstanding Common Shares
entitling them for a period expiring not more than 60 days after such
record date, to subscribe for or purchase Common Shares (or securities
exchangeable for or convertible into Common Shares) at a price per
share (or having an exchange or conversion price per share) less than
95% of the Current Market Price on such record date, the Exercise Price
shall be adjusted immediately after the date upon which such rights,
options or warrants expire so that it shall equal a rate determined by
multiplying the Exercise Price in effect on such expiry date by a
fraction, of which the numerator shall be the total number of Common
Shares outstanding on such expiry date (exclusive of those Common
Shares issued upon the exercise of such rights, options or warrants)
plus a number of Common Shares equal to the number arrived at by
dividing the aggregate price of the total number of additional Common
Shares subscribed for or purchased upon the exercise of such rights,
options or warrants (or the aggregate exchange or conversion price of
the convertible securities so subscribed for or purchased) by the
Current Market Price of a Common Share, and of which the denominator
shall be the total number of Common Shares outstanding on such expiry
date (exclusive of those Common Shares issued upon the exercise of such
rights, options or warrants) plus the total number of Common shares
subscribed for or purchased upon the exercise of such rights, options
or warrants (or into which the exchangeable or convertible securities
so subscribed for or purchased are exchangeable or convertible). Any
Common Shares owned by or held for the account of the Corporation,
including those owned by any subsidiary of the Corporation, shall be
deemed not to be outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such an expiry date
occurs.
(c) In the event the Corporation shall fix a record date for the making of
a distribution to all or substantially all of the holders of its
outstanding Common Shares of:
(i) shares of any class other than Common shares or securities
exchangeable for or convertible into Common Shares issued by
way of a stock dividend;
(ii) rights, options or warrants, excluding those referred to in
clause 5.01(b);
(iii) evidences of its indebtedness; or
(iv) assets of the Corporation, excluding cash dividends other than
cash dividends to the extent that the aggregate amount of cash
dividends paid by the Corporation on its Common Shares in any
fiscal year of the Corporation exceeds 100% of the aggregate
net income of the Corporation for the immediately preceding
five fiscal years less cash dividends paid on any of its
shares during such fiscal years;
then in each such case the Exercise Price shall be adjusted immediately
after such record date, or in the case of such record date being fixed
for the issuance of such rights, options or warrants, immediately after
the date upon which such rights, options or warrants expire, so that it
shall equal the rate determined by multiplying the Exercise Price in
effect on such record date, or expiry date, as the case may be, by a
fraction, of which the numerator shall be the total number of Common
Shares outstanding on such record date or expiry date (exclusive of
those Common Shares issued upon the exercise of such rights, options or
warrants), multiplied by the Current Market Price per Common share on
such record date or expiry date, less the aggregate fair market value
(as determined by the
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board of directors, whose determination shall be conclusive) of such
shares, evidences of indebtedness or assets distributed or the fair
market value (as determined by the board of directors, whose
determination shall be conclusive) of the securities issued upon the
exercise of such rights, options or warrants, and of which the
denominator shall be the total number of Common Shares outstanding on
such record date or expiry date (inclusive of those Common Shares
issued upon the exercise of such rights, options or warrants)
multiplied by the Current Market Price per Common Share on such record
date or expiry date. Any Common Shares owned by or held for the account
of the Corporation, including those owned by a subsidiary of the
Corporation, shall be deemed not to be outstanding for the purpose of
any such computation. Such adjustment shall be made successively
whenever such a record date is fixed or such expiry date occurs. To the
extent that such distribution of shares, evidences of indebtedness or
assets is not so made, the Exercise Price shall be readjusted to the
Exercise Price which would then be in effect based upon such shares,
evidences of indebtedness or assets actually distributed.
Section 5.02 No Adjustments
No adjustments of the subscription rights or Exercise Price shall be
made pursuant to Clause 5.01 if the Warrantholder was permitted to participate
in the issuance of such rights, options or warrants or such distribution, as the
case may be, as though and to the same effect as if it had exercised the Warrant
and had acquired Common Shares prior to the issuance of such rights, options or
warrants or such distribution, as the case may be.
Section 5.03 Adjustments Cumulative
The adjustments provided for in this Article V are cumulative. No
adjustment of the Exercise Price shall be made in any case in which the
resulting adjustment to the Exercise Price would be less than 1% of the then
Exercise Price, but in such case any adjustment that would otherwise have been
required then to be made shall be carried forward and made at the time of, and
together with, the next subsequent adjustment to the Exercise Price which,
together with any and all such adjustments so carried forward, shall result in
an adjustment in the Exercise Price of not less than 1%.
Section 5.04 Certificate
When any action is taken which requires an adjustment of the Exercise
Price to be made under Sections 5.01 or 5.06, the Corporation shall forthwith
prepare a certificate signed by the President or Vice-President and by the
Secretary, an Assistance Secretary or the Treasurer of the Corporation, setting
forth the details of the action taken, the Exercise Price before adjustment and
the details of the computation of the adjusted Exercise Price. The Corporation
shall exhibit a copy of such certificate from time to time to a Warrantholder
desiring to inspect the same. The Corporation may retain a firm of independent
chartered accountants, who may be the auditors of the Corporation, to make any
computation required under Sections 5.01 or 5.06, and any computation so made
shall be final and binding on the Corporation and the Warrantholder. Such firm
of independent accountants may, as to questions of law, request and rely upon an
opinion of independent counsel, who may be counsel for the Corporation. Any such
determination shall be conclusive and binding on the Corporation and the
Warrantholder.
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Section 5.05 No Fractional Shares
If, following the application of Section 5.01, the number of Common
Shares issuable on the exercise of the Warrant would not be a whole number, upon
the exercise of the Warrant the Corporation shall not be required to issue a
fractional share. The Corporation shall round up any fractional share to the
next highest whole number and shall issue and deliver such whole number of
Common Shares.
Section 5.06 Reclassification and Reorganization
In case of, after the date hereof, any reclassification or change of
the Common shares, other than a change contemplated in Section 5.01, or in the
case of any reorganization, amalgamation, consolidation or merger of the
Corporation with or into any other corporation, or in the case of any sale of
the properties and assets of the Corporation as, or substantially as, an
entirety to any other corporation, the Warrant shall, after such
reclassification, change, reorganization, amalgamation, consolidation, merger or
sale, be exercisable to acquire the number of shares or other securities or
property of the Corporation, or such continuing, successor or purchasing
corporation, as the case may be, to which a holder of the number of Common
Shares as would have been issued if such Warrant had been exercised immediately
prior to such reclassification, change, reorganization, amalgamation,
consolidation, merger or sale would have been entitled upon such
reclassification, change, reorganization, amalgamation, consolidation, merger or
sale.
Section 5.07 Corporation's Rights Not Limited
Nothing in this Article V shall be construed as affecting or limiting
in any way the right of the Corporation to amend its articles or to effect any
redesignation, reclassification, consolidation, subdivision, redivision,
exchange, conversion or other capital reorganization affecting Common Shares or
any other shares of its capital.
Section 5.08 Adjustment of Provisions
If, in the opinion of the board of directors, the provisions of this
Article V are not strictly applicable, or if strictly applicable, would not
fairly protect the rights of the Warrantholders or the Corporation in accordance
with the intent and purposes hereof, the board of directors shall make any
adjustment in such provisions as the board of directors deems appropriate.
Section 5.09 Shares to be Reserved
As a condition precedent to the taking of any action which would
require an adjustment in any of the subscription rights pursuant to the Warrant,
the Corporation shall take any corporate action which may be necessary in order
that the Corporation has unissued and reserved in its authorized capital and may
validly and legally issue as fully paid and non-assessable all the Common Shares
or other securities which the Warrantholder is entitled to receive on the full
exercise of the Warrant in accordance with the provisions hereof.
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ARTICLE VI
NOTICES
Section 6.01 Notice
Any notice or other written communication required or permitted
hereunder shall be in writing and:
(a) delivered personally to the party or, if the party is a
corporation, an officer of the party to whom it is directed;
(b) sent by registered mail, postage prepaid, return receipt
requested (provided that such notice or other written
communication shall not be forwarded by mail if on the date of
mailing there exists an actual or imminent postal service
disruption in the city from which such communication is to be
mailed or in which the address of the recipient is found); or
(c) sent by confirmed telecopy, cable or other means of prepaid,
transmitted or recorded communication.
All such notices shall be addressed to the party to whom it is directed
at the following addresses:
If to the Corporation:
Dura Products International Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Financial Officer
If to the Warrantholder:
the address of the Warrantholder last provided to the Corporation by
the Warrantholder.
Any party may at any time change its address hereunder by giving notice
of such change of address to the other party or parties in the manner specified
in this paragraph. Any such notice or other written communication, if mailed by
prepared registered mail, shall be effective on the day of receipt; if given by
telex, telegram or telecopy or other form of prepaid, transmitted or recorded
communication, shall be effective on the first business day after the sending
thereof; and if given by personal delivery, shall be effective on the day of
delivery.
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ARTICLE VII
FORMAL DATE
Section 7.01 Formal Date
The Warrant may be referred to as bearing the formal date of o , 199o ,
irrespective of the actual date of execution.
SCHEDULE "B"
SUBSCRIPTION FORM
The undersigned holder of the within Warrant hereby exercises the right
to purchase and hereby subscribes for o Common Shares according to the terms of
the within Warrant and herewith makes payment of the subscription price in full
for the said number of Common Shares.
The said Common Shares are to be registered as follows:
Name Address in Full Number of Shares
o o o
DATED this day of , 199_ .
-----------------------------------------
Signature of Subscriber
-----------------------------------------
Print Name of Subscriber
-----------------------------------------
Address in full of Subscriber
INSTRUCTIONS TO WARRANTHOLDER
TO SUBSCRIBE - Fill in the Subscription Form above and sign on the line
"Signature of Subscriber". Print your full name and full address on the lines
provided and then send or deliver this Warrant with the total subscription price
for the Common Shares purchased to o at its office at o . The subscription price
should be paid in cash or by certified cheque made payable to o at par in
Toronto.
To be effective, this Warrant with the completed subscription form and
the applicable payment must be received by the Corporation before 4:30 p.m.
Toronto time on o , 199o . For your own protection, the Warrant, subscription
form and payment should be delivered or forwarded by registered mail.
The maximum number of Common Shares for which you may subscribe is set
out on the face page of the Warrant.
Certificates for Common Shares purchased will be delivered or mailed as
soon as practicable after your purchase.
THIS WARRANT WILL EXPIRE AT 4:30 P.M., TORONTO TIME, ON O , 199O AND
MUST BE EXERCISED BEFORE THAT TIME, OTHERWISE THIS WARRANT WILL BE VOID AND OF
NO EFFECT.
