Exhibit 4.6
GRAN TIERRA ENERGY
INC.
and
PETROLIFERA PETROLEUM
LIMITED
and
COMPUTERSHARE TRUST COMPANY OF
CANADA
SUPPLEMENTAL WARRANT
INDENTURE
March 18, 2011
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ARTICLE
1
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INTERPRETATION
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2
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Definitions
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2
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Gender and
Number
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4
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Interpretation
not Affected by Headings, etc
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Day not a
Business Day
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Time of the
Essence
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Applicable
Law
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5
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Severability
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5
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Conflicts
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5
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Supersedes
Original Indenture
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5
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ARTICLE
2
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ISSUE OF
WARRANTS
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5
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Issue of
Warrants
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5
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Acceleration of
Expiry Date
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5
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Form and Terms
of Warrants
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6
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Warrantholder
not a Shareholder
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Warrants to
Rank pari passu
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6
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Signing of
Warrant Certificates
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Certification
by the Warrant Agent
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7
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Issue in
Substitution for Warrant Certificates Lost, etc
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7
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Exchange of
Warrant Certificates
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7
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Transfer of
Warrants
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8
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Charges for
Exchange and Transfer
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8
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Registration of
Warrants
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Transferee
Entitled to Registration
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8
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Registers Open
for Inspection
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Ownership of
Warrants
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ARTICLE
3
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EXERCISE OF
WARRANTS
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9
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Method of
Exercise of Warrants
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9
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Effect of
Exercise of Warrants
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10
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Partial
Exercise of Warrants; Fractions
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10
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Expiration of
Warrants
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11
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Cancellation of
Surrendered Warrants
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11
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Accounting and
Recording
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11
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Common Share
Certificates
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11
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ARTICLE
4
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ADJUSTMENT
OF NUMBER OF COMMON SHARES
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12
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Adjustment of
Number of Common Shares
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12
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Entitlement to
Shares on Exercise of Warrant
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15
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No Adjustment
for Stock Options or Warrants
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15
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Determination
by Corporation's Auditors
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15
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Proceedings
Prior to any Action Requiring Adjustment
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Certificate of
Adjustment
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15
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Notice of
Special Matters
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No Action after
Notice
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Protection of
Warrant Agent
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Other
Adjustments
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Page
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ARTICLE
5
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RIGHTS AND
COVENANTS OF THE CORPORATION
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Optional
Purchases by the Corporation
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General
Covenants
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Warrant Agent's
Remuneration and Expenses
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Performance of
Covenants by Warrant Agent
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ARTICLE
6
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ENFORCEMENT
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Suits by
Warrantholders
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Limitation of
Liability
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Waiver of
Default
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19
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ARTICLE
7
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MEETINGS OF
WARRANTHOLDERS
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20
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Right to
Convene Meetings
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20
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Notice
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20
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Chairman
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20
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Quorum
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20
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Power to
Adjourn
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21
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Show of
Hands
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21
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Poll and
Voting
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21
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Regulations
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Corporation and
Warrant Agent May be Represented
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Powers
Exercisable by Extraordinary Resolution
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Meaning of
Extraordinary Resolution
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Powers
Cumulative
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Minutes
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Instruments in
Writing
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Binding Effect
of Resolutions
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Holdings by
Corporation Disregarded
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ARTICLE
8
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SUPPLEMENTAL
INDENTURES
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Provision for
Supplemental Indentures for Certain Purposes
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Successor
Corporations
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ARTICLE
9
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CONCERNING
THE WARRANT AGENT
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Trust Indenture
Legislation
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Rights and
Duties of Warrant Agent
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Evidence,
Experts and Advisers
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Documents,
Monies, etc. Held by Warrant Agent
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Actions by
Warrant Agent to Protect Interest
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Warrant Agent
Not Required to Give Security
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Protection of
Warrant Agent
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Replacement of
Warrant Agent; Successor by Merger
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Conflict of
Interest
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Acceptance of
Trust
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Warrant Agent
Not to be Appointed Receiver
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Knowledge of
Warrant Agent
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29
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Indemnification
of Warrant Agent
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29
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Warrant Agent
Not Required to Give Notice of Default
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29
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Warrant Agent's
Right Not to Act
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30
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Page
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No Third Party
Interests
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ARTICLE
10
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GENERAL
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30
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Notice to the
Corporation and the Warrant Agent
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30
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Notice to
Warrantholders
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31
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Evidence of
Ownership
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31
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Counterparts
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32
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Satisfaction
and Discharge of Indenture
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32
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Provisions of
Supplemental Indenture and Warrants for the Sole Benefit of Parties
and Warrantholders
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32
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Warrants Owned
by the Corporation or its Subsidiaries – Certificate to be
Provided
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32
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Matters
Relating to the Privacy of Personal Information
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33
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Matters
Relating to the SEC
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33
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Force
Majeure
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Successors
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SUPPLEMENTAL WARRANT
INDENTURE
THIS
SUPPLEMENTAL WARRANT INDENTURE is made as of 18 th day of
March, 2011
GRAN TIERRA
ENERGY INC. , a
corporation formed under the Laws of Nevada (the "
Corporation ")
- and -
PETROLIFERA
PETROLEUM LIMITED , a
corporation formed under the laws of Canada (" PPL
")
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA
, a trust company incorporated under
the laws of Canada (the " Warrant Agent ")
WHEREAS PPL and Valiant Trust Company (the " Original
Warrant Agent ") entered into a warrant indenture (the "
Original Indenture ") dated August 28, 2009 to provide
for the creation and issuance of 32,671,500 warrants in the capital
of PPL (the " Original Warrants "), with each Original
Warrant entitling the holder thereof to acquire one common share in
the capital of PPL upon the payment of $1.20 in lawful money of
Canada (the " Original Exercise Price ");
AND
WHEREAS pursuant to a
statutory plan of arrangement in accordance with the Canada
Business Corporations Act effective as of March 18, 2011 (the "
Arrangement "), among other things, the Corporation
acquired, directly or indirectly, the undertaking of PPL as an
entirety;
AND
WHEREAS the Arrangement
provides that each outstanding Original Warrant shall be sold,
assigned and transferred to the Corporation in exchange for a
number of warrants in the capital of the Corporation (the "
Warrants ") equal to the product of one multiplied by
0.1241; the exercise price for each such Warrant will be equal to
the Original Exercise Price divided by 0.1241 (rounded up to the
nearest whole cent); the expiry date of the Warrants will be the
same as for the Original Warrants; and the Warrants shall be
governed by this Supplemental Indenture;
AND
WHEREAS the Corporation,
as successor entity, wishes to assume all of the rights, covenants
and obligations of PPL under the Original Indenture, as such
Original Indenture is amended and restated in this Supplemental
Indenture (the " Supplemental Indenture ");
AND
WHEREAS the Original
Warrant Agent has provided PPL with its notice of intention to
resign as warrant agent under the Original Indenture and PPL has
accepted this notice as being sufficient; The foregoing statements
of fact and recitals are made by PPL and not by the Warrant
Agent;
AND
WHEREAS the Warrant Agent
wishes to assume all of the rights, covenants and obligations of
the Original Warrant Agent under the Original Indenture, in
accordance with the terms thereof;
AND
WHEREAS the foregoing
recitals are made as representations and statements of fact by the
Corporation and PPL and not by the Warrant Agent;
NOW
THEREFORE it is hereby
covenanted, agreed and declared as follows:
The parties
agree as follows.
ARTICLE 1
INTERPRETATION
In this
Supplemental Indenture, including the recitals and schedules hereto
and in all indentures supplemental hereto:
"
Accelerated Expiry Date " has the meaning set forth in
Section 2.2;
"
Accelerated Time of Expiry " means 5:00 p.m., Calgary
time, on the Accelerated Expiry Date;
"
Acceleration Notice " has the meaning set forth in
Section 2.2;
" Adjustment
Period " means the period from and including the Effective Date
up to and including the Time of Expiry or the Accelerated Time of
Expiry, as applicable;
"
affiliate " has the meaning given thereto in the
Securities Act (Alberta);
"
Arrangement " means the statutory plan of arrangement
pursuant to the Canada Business Corporations Act effective
March 18, 2011;
" Authorized
Investments " means short term interest bearing or discount
debt obligations issued or guaranteed by the Government of Canada
or a province of Canada;
" Business
Day " means a day which is not Saturday or Sunday or a legal
holiday in the City of Calgary or a day on which the Warrant Agent
is closed for business;
" Closing
Trading Price " means the closing trading price on the Toronto
Stock Exchange on the Business Day immediately prior to the
Exercise Date;
" Common
Shares " means fully paid and non-assessable Common Shares of
the Corporation as presently constituted;
"
Corporation " means Gran Tierra Energy Inc.;
"
Corporation's Auditors " means the firm of chartered
accountants that is duly appointed as auditors of the
Corporation;
"
Counsel " means a barrister or solicitor or a firm of
barristers and solicitors retained by the Warrant Agent or retained
by the Corporation and acceptable to the Warrant Agent;
" Current
Market Price " of the Common Shares at any date means the
weighted average of the trading prices per share for such shares
for any 10 consecutive Trading Days (as selected by the
directors of the Corporation) during the period commencing not more
than 30 Trading Days before such date on the Toronto Stock
Exchange or, if on such date the Common Shares are not listed on
the Toronto Stock Exchange, on such stock exchange upon which such
shares are listed and as selected by the directors, or, if such
shares are not listed on any stock exchange then on such
over-the-counter market as may be selected for such purpose by the
directors, or, if the Common Shares are not listed on any stock
exchange or traded through an over-the-counter market, the Current
Market Price is to be determined in good faith by the directors of
the Corporation;
"
director " means a director of the Corporation for the time
being and, unless otherwise specified herein, reference to action
"by the directors" means action by the directors of the Corporation
as a board or, whenever duly empowered, action by any committee of
such board;
" Dividends
Paid in the Ordinary Course " means cash dividends or
distributions declared payable on the Common Shares in any fiscal
year of the Corporation to the extent that such cash dividends or
distributions do not exceed, in the aggregate, 50% of the
consolidated net income of the Corporation before extraordinary
items for the period of 12 consecutive months ended
immediately prior to the first day of such fiscal year (such
consolidated net income and extraordinary items to be shown in the
audited consolidated financial statements of the Corporation for
such period of 12 consecutive months or if there are no
audited consolidated financial statements for such period, computed
in accordance with generally accepted accounting principles,
consistent with those applied in the preparation of the most recent
audited consolidated financial statements of the
Corporation);
" Effective
Date " means the original Issue Date of the Warrants by the
Corporation;
" Exercise
Date " means, with respect to any Warrant, the date on which
the Warrant Certificate representing such Warrant is surrendered
for exercise in accordance with the provisions of Article
3;
" Exercise
Price " with respect to the exercise of any Warrant means $9.67
in lawful money of Canada per Common Share, unless such price shall
have been adjusted in accordance with the provisions of Article 4,
in which case it shall mean the adjusted price in effect at such
time;
" Expiry
Date " means August 28, 2011 subject to adjustment in
accordance with Section 2.2.;
" Issue
Date " means, in respect of each Warrant, the date of this
Supplemental Indenture;
" person
" means an individual, body corporate, partnership, trust, trustee,
executor, administrator, legal representative or any unincorporated
organization;
" SEC "
means the United States Securities and Exchange
Commission;
"
Shareholder " means a holder of record of one or more Common
Shares;
" Subsidiary
of the Corporation " or " Subsidiary " means any
corporation or other person (other than an individual) of which
more than 50% of the outstanding voting securities are owned,
directly or indirectly, by or for the Corporation, provided that
the ownership of such securities confers the right to elect at
least a majority of the board of directors (or persons in a similar
position of fiduciary responsibility) of such corporation or other
person (other than an individual) and includes any entity in like
relation to a Subsidiary;
" successor
entity " has the meaning set forth in
Section 8.2;
" this
Warrant Indenture ", " this Supplemental Indenture ", "
herein ", " hereby " and similar expressions mean and
refer to this amended and restated Supplemental Indenture and any
indenture, deed or instrument supplemental hereto; and the
expressions " Article ", " Section " "
subsection " and " paragraph " followed by a number
mean and refer to the specified article, section, subsection or
paragraph of this Supplemental Indenture;
" Time of
Expiry " means 5:00 p.m., Calgary time, on the Expiry
Date;
" Trading
Day " means a day on which the Toronto Stock Exchange, other
stock exchange or over-the-counter market, as the case may be, is
open for the transaction of business and on which the Common Shares
actually trade on such exchange or market;
" United
States " means the United States of America, its territories
and possessions, any State of the United States, and the District
of Columbia;
"
U.S. Securities Act " means the United States
Securities Act of 1933 , as amended;
" Warrant
Agency " means the principal office of the Warrant Agent in the
City of Calgary and the City of Toronto or such other place as may
be designated in accordance with subsection 3.1(c);
" Warrant
Agent " means Computershare Trust Company of Canada or its
successors from time to time in the trust hereby
created;
" Warrant
Certificate " means a certificate, in substantially the form
attached hereto as Schedule "A", issued on or after the
Effective Date to evidence Warrants;
"
Warrantholder ", or " holder " without reference to
Common Shares, means the person who is the registered owner of
Warrants as shown on the register maintained at the Warrant Agency
by the Warrant Agent in accordance with this Supplemental
Indenture;
"
Warrantholders Request " means an instrument signed in one
or more counterparts by Warrantholders representing in the
aggregate not less than 10% of the aggregate number all Warrants
then outstanding and unexercised, requesting the Warrant Agent to
take some action specified therein;
"
Warrants " means the Warrants issued and certified hereunder
and for the time being outstanding entitling the holder to acquire
Common Shares in accordance with this Indenture; and
" written
order of the Corporation ", " written request of the
Corporation ", " written consent of the Corporation ", "
written notice of the Corporation " and " certificate of
the Corporation " mean, respectively, a written order, request,
consent, notice and certificate signed in the name of the
Corporation by any director or officer of the Corporation, and may
consist of one or more instruments so executed.
Unless herein
otherwise expressly provided or unless the context otherwise
requires, words importing the singular include the plural and vice
versa and words importing gender include all genders.
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Interpretation not Affected by Headings,
etc.
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The division of
this Indenture into Articles and Sections, the provision of a table
of contents and the insertion of headings are for convenience of
reference only and shall not affect the construction or
interpretation of this Indenture.
In the event
that any day on or before which action is required to be taken
hereunder is not a Business Day, then such action shall be required
to be taken at or before the requisite time on the next succeeding
day that is a Business Day.
Time shall be
of the essence in this Indenture.
This
Supplemental Indenture and the Warrant Certificates shall be
construed in accordance with the laws of the Province of Alberta
and shall be treated in all respects as Alberta
contracts. The parties hereby submit and attorn to the
jurisdiction of the courts of Alberta for all matters related to
this Supplemental Indenture and the Warrant
Certificates.
In the event
that any provision under this Supplemental Indenture is determined
to be invalid or unenforceable in any respect, such determination
will not affect the provision in any other respect or any other
provision under this Indenture, all of which will remain in full
force and effect.
In the event
there is any conflict between this Indenture and any Warrant
Certificate, the provisions under this Indenture will govern and
prevail.
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Supersedes Original Indenture
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From and after
the date hereof, the rights, obligations, terms and conditions set
out in the Original Indenture have been superseded, amended and
replaced by this Supplemental Indenture.
ARTICLE 2
ISSUE OF WARRANTS
In connection
with the Arrangement, 4,125,036 Warrants are hereby created and
authorized to be issued in accordance with the terms hereof and
shall be executed by the Corporation and certified by or on behalf
of the Warrant Agent upon the written order of the Corporation and
delivered by the Warrant Agent to the Corporation in accordance
with the written direction of the Corporation. Each
Warrant shall be nominally denominated as the right, upon exercise
and with the payment of the Exercise Price, to acquire one Common
Share, subject to adjustment in accordance with Article 4, at any
time after the Issue Date and ending at the Time of Expiry or
Accelerated Time of Expiry, as the case may be; provided, however,
that notwithstanding anything to the contrary set forth herein,
Warrants shall not be exercisable by payment of the Exercise Price,
but and may only be exercised by "net exercise", such that, upon
exercise, the holder thereof shall acquire a fraction of a Common
Share (subject to Sections 2.3(c) and 3.3(b)) as is equal
to:
Fraction = (A –
B)/A
For purposes of
the foregoing formula:
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the Closing
Trading Price.
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Acceleration of Expiry Date
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Subject to
adjustment in accordance with Article 4, at any time after the
Issue Date and ending at the Time of Expiry, if the 20 trading
day volume weighted average price of the Common Shares on the
Toronto Stock Exchange (or such other stock exchange or quotation
system on which the Corporation's shares are listed and where a
majority of the trading volume occurs), exceeds $20.15, the
Corporation may, within five Business Days after such an event,
provide notice (the " Acceleration Notice ") to the
Warrantholders advising that the Warrants will expire on the
Accelerated Time of Expiry on the date which is 30 days after
the date of the Acceleration Notice (the " Accelerated Expiry
Date ") if not exercised prior to the Accelerated Time of
Expiry.
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Form and
Terms of Warrants
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The Warrant
Certificates (including all replacements issued in accordance with
this Indenture) shall be substantially in the form set out in
Schedule "A" hereto, shall bear such legends and
distinguishing letters and numbers as the Corporation may, with the
approval of the Warrant Agent, prescribe, and shall be issuable in
any denomination excluding fractions.
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The Warrant
Certificates may be engraved, printed, lithographed or in other
form or partly in one form and partly in another as the Corporation
with the approval of the Warrant Agent may determine. No
change in the Warrant Certificate shall be required by reason of
any adjustment made pursuant to Article 4 in the number or class of
Common Shares or other securities to which a holder is entitled
pursuant to the exercise of the Warrants or by reason of any
acceleration made pursuant to Section 2.2 to the date the
Warrants expire.
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No fractional
Warrants shall be issued or otherwise provided for
hereunder. Any fractional interests in Common Shares of
a Warrantholder will be aggregated to form whole numbers of Common
Shares with any remaining fractional interests rounded down to the
nearest whole Common Share. Cash will be paid in lieu of
any fractional share entitlement based on the Current Market Price
of the Common Shares, provided that the Corporation shall not be
required to make any such cash payment that is less than
$10.00.
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The number of
Common Shares which may be received pursuant to the exercise of
Warrants in accordance with the terms and conditions of this
Supplemental Indenture shall be adjusted in the events and in the
manner specified in Article 4.
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Each Warrant
shall entitle the holder thereof to such other rights and
privileges as are set forth in this Supplemental
Indenture.
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Warrantholder not a
Shareholder
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Nothing in this
Supplemental Indenture or in the holding of a Warrant or Warrant
Certificate or otherwise, shall, in itself, confer or be construed
as conferring upon a Warrantholder any right or interest whatsoever
as a Shareholder or as any other shareholder of the Corporation,
including, but not limited to, the right to vote at, to receive
notice of, or to attend, meetings of Shareholders or any other
proceedings of the Corporation, or the right to receive dividends
and other distributions except as may be provided in this
Supplemental Indenture or the Warrant Certificates.
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Warrants
to Rank pari passu
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All Warrants
shall rank pari passu , whatever may be the actual Issue
Date thereof.
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Signing
of Warrant Certificates
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The Warrant
Certificates shall be signed by any one director or officer of the
Corporation. The signature of any such director or
officer may be mechanically reproduced in facsimile and Warrant
Certificates bearing such facsimile signature shall be binding upon
the Corporation as if it had been manually signed by such director
or officer. Notwithstanding that any of the persons
whose manual or facsimile signature appears on any Warrant
Certificate as a director or officer may no longer be appointed or
hold office at the date of such Warrant Certificate or at the date
of certification or delivery thereof, any Warrant Certificate
signed as aforesaid shall, subject to Section 2.7, be valid
and binding upon the Corporation and the holder thereof shall be
entitled to the benefits of this Supplemental Indenture.
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Certification by the Warrant
Agent
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No Warrant
Certificate shall be issued or, if issued, shall be valid for any
purpose or entitle the holder to the benefit hereof until it has
been certified by manual signature by or on behalf of the Warrant
Agent and such certification by the Warrant Agent upon any Warrant
Certificate shall be conclusive evidence as against the Corporation
that the Warrant Certificate so certified has been duly issued
hereunder and that the holder is entitled to the benefits
hereof.
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The
certification of the Warrant Agent on Warrant Certificates issued
hereunder shall not be construed as a representation or warranty by
the Warrant Agent as to the validity of this Supplemental Indenture
or the Warrant Certificates (except the due certification thereof)
and the Warrant Agent shall in no respect be liable or answerable
for the use made of the Warrant Certificate or any of them or of
the consideration therefor except as otherwise specified
herein. The countersignature of the Warrant Agent will,
however, be a representation and warranty of the Warrant Agent that
the Warrant Certificate has been duly countersigned by or on behalf
of the Warrant Agent pursuant to the provisions of this
Supplemental Indenture.
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Issue in
Substitution for Warrant Certificates Lost, etc.
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In the event
that any Warrant Certificate shall become mutilated or be lost,
destroyed or stolen, the Corporation, subject to applicable law,
shall issue and thereupon the Warrant Agent shall certify and
deliver, a new Warrant Certificate of like tenor as the one
mutilated, lost, destroyed or stolen in exchange for and in place
of and upon cancellation of such mutilated Warrant Certificate, or
in lieu of and in substitution for such lost, destroyed or stolen
Warrant Certificate, and the substituted Warrant Certificate shall
be in a form approved by the Warrant Agent and the Warrants
evidenced thereby shall be entitled to the benefits hereof and
shall rank equally in accordance with its terms with all other
Warrants issued or to be issued hereunder.
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The applicant
for the issue of a new Warrant Certificate pursuant to this
Section 2.8 shall bear the cost of the issue thereof and in
case of loss, destruction or theft shall, as a condition precedent
to the issue thereof, furnish to the Corporation and to the Warrant
Agent such evidence of ownership and of the loss, destruction or
theft of the Warrant Certificate so lost destroyed or stolen as
shall be satisfactory to the Corporation and to the Warrant Agent
each in their sole discretion, and such applicant shall also be
required to furnish an indemnity and surety bond in amount and form
satisfactory to the Corporation and the Warrant Agent each in their
discretion and shall pay the reasonable charges of the Corporation
and the Warrant Agent in connection therewith.
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Exchange
of Warrant Certificates
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Warrant
Certificates representing Warrants to acquire any specified number
of Common Shares may, upon compliance with the reasonable
requirements of the Warrant Agent, be exchanged for another Warrant
Certificate or Warrant Certificates entitling the holder thereto to
acquire in the aggregate the same number of Common Shares as may be
acquired under the Warrant Certificate or Warrant Certificates so
exchanged. Upon compliance with the reasonable
requirements of the Warrant Agent and the terms and conditions
hereof, the Corporation will sign, and the Warrant Agent will
countersign, all Warrant Certificates necessary to carry out these
exchanges.
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Warrant
Certificates may be exchanged only at a Warrant Agency or at any
other place that is designated by the Corporation with the approval
of the Warrant Agent. Any Warrant Certificate tendered
for exchange shall be cancelled by the Warrant Agent.
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Subject to
subsection 2.10(b) below and such reasonable requirements as
the Warrant Agent may prescribe and all applicable securities
legislation and requirements of regulatory authorities, the
Warrants may be transferred on the register kept at the Warrant
Agency by the Warrantholder (or its legal representatives or its
attorney duly appointed by an instrument in writing in form and
manner of execution satisfactory to the Warrant Agent) only upon
the surrender of the relevant Warrant Certificate with the transfer
form forming part thereof duly completed and
signed. After receiving the surrendered Warrant
Certificate(s) and upon the person surrendering the same meeting
the requirements set forth above, the Warrant Agent shall issue to
the transferee a Warrant Certificate representing the Warrants
transferred.
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No transfer of
a Warrant shall be valid: (i) unless made in
accordance with the provisions hereof; (ii) until, upon
compliance with such reasonable requirements as the Warrant Agent
may prescribe, such transfer is recorded on the register maintained
by the Warrant Agent pursuant to Section 2.12;
(iii) unless such registration shall be noted on the Warrant
Certificate by the Warrant Agent; and (iv) until all
governmental or other charges arising by reason of such transfer
have been paid.
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Charges
for Exchange and Transfer
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Except as
otherwise herein provided, the Warrant Agent may charge to the
holder requesting an exchange or transfer a reasonable sum for each
new Warrant Certificate issued in exchange for Warrant
Certificate(s), and payment of such charges and reimbursement of
the Warrant Agent or the Corporation for any and all stamp taxes or
governmental or other charges required to be paid shall be made by
such holder as a condition precedent to such exchange or
transfer.
The Warrant
Agent shall keep at the Warrant Agency: (i) a
register of Warrantholders in which shall be entered in
alphabetical order the names and addresses of the holders of
Warrants and particulars of the Warrants held by them; and
(ii) a register of transfers in which all transfers of
Warrants and the date and other particulars of each transfer shall
be entered. Branch registers shall also be kept at such
other place or places, if any, as the Corporation, with the
approval of the Warrant Agent, may designate. Such
registers will at all reasonable times be open for inspection by
the Corporation and/or any Warrantholder.
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Transferee Entitled to
Registration
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The transferee
of a Warrant shall, after the transfer form attached to the Warrant
Certificate is duly completed and the Warrant Certificate and form
of transfer are lodged with the Warrant Agent, and upon compliance
with all other conditions in that regard required by this
Supplemental Indenture and by all applicable securities legislation
and requirements of regulatory authorities, be entitled to have his
name entered on the register as the owner of such Warrant free from
all equities or rights of set off or counterclaim between the
Corporation and his transferor or any previous Warrantholder of
such Warrant, save in respect of equities of which the Corporation
or the transferee is required to take notice by statute or by order
of a court of competent jurisdiction.
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Registers
Open for Inspection
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The registers
hereinbefore referred to shall be open at the office of the Warrant
Agent during normal business hours on each Business Day and upon
reasonable written notice for inspection by the Corporation, the
Warrant Agent or any Warrantholder. The Warrant Agent
shall, from time to time when requested to do so by the
Corporation, furnish the Corporation with a list of the names and
addresses of Warrantholders entered in the register kept by the
Warrant Agent showing the number of Warrants and the number of
Common Shares which may then be acquired upon the exercise of the
Warrants held by each such Warrantholder.
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The Corporation
and the Warrant Agent may deem and treat the registered
Warrantholder of any Warrant Certificate as the absolute owner of
the Warrant represented thereby for all purposes, and the
Corporation and the Warrant Agent shall not be affected by any
notice or knowledge to the contrary, except where the Corporation
or the Warrant Agent is required to take notice by statute or by
order of a court of competent jurisdiction. For greater
certainty, subject to applicable law, neither the Corporation nor
the Warrant Agent will be bound to take notice of or see to the
execution of any trust, whether express, implied or constructive,
in respect of any Warrant, and may transfer any Warrant on the
direction of the person registered as Warrantholder thereof,
whether named as trustee or otherwise, as though that person were
the beneficial owner thereof.
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Subject to the
provisions of this Supplemental Indenture and applicable law, each
Warrantholder shall be entitled to the rights and privileges
attaching to the Warrants held thereby. The exercise of
the Warrants in accordance with the terms hereof and the receipt by
any such Warrantholder of Common Shares pursuant thereto shall be a
good discharge to the Corporation and the Warrant Agent with
respect to such Warrants and neither the Corporation nor the
Warrant Agent shall be bound to inquire into the title of any such
holder.
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ARTICLE 3
EXERCISE OF
WARRANTS
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Method of
Exercise of Warrants
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The holder of
any Warrant may exercise the right evidenced thereby conferred on
such holder to acquire Common Shares by surrendering, prior to the
Time of Expiry or the Accelerated Time of Expiry, as applicable, to
the Warrant Agent at a Warrant Agency the Warrant Certificate
representing such Warrant, with a duly completed and executed
exercise form in the form attached to the Warrant Certificate.
Promptly upon the receipt of a duly completed and executed exercise
form, the Warrant Agent will deliver a notice to the Corporation of
the exercise and the Corporation will provide the Warrant Agent
with confirmation of the number of Common Shares to be issued in
accordance with Section 2.1
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Any exercise
form referred to in subsection 3.1(a) shall be signed by the
Warrantholder or his executors, administrators or other legal
representatives or his attorney duly appointed (such persons being
obligated to provide the Warrant Agent at the Warrant Agency with
proof satisfactory to the Warrant Agent of his or her authority to
act on behalf of the Warrantholder) and shall specify:
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the number of
Warrants which the holder wishes to exercise (being not more than
those which are represented by the Warrant Certificate(s)
surrendered);
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the person or
persons in whose name or names such Common Shares are to be issued,
and if such persons are individuals, the relevant social insurance
numbers;
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the address or
addresses of such person or persons; and
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the number of
Warrants to be exercised by each such person if more than one is so
specified.
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If any of the
Common Shares subscribed for are to be issued to a person or
persons other than the Warrantholder, the Warrantholder shall pay
to the Corporation or the Warrant Agent on behalf of the
Corporation, all applicable transfer or similar taxes and the
Corporation shall not be required to issue or deliver certificates
evidencing Common Shares unless or until such Warrantholder shall
have paid to the Corporation, or the Warrant Agent on behalf of the
Corporation, the amount of such tax or shall have established to
the satisfaction of the Corporation that such tax has been paid or
that none is due.
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In connection
with the exchange of Warrant Certificates and exercise of Warrants
and compliance with such other terms and conditions hereof as may
be required, the Corporation has appointed the principal office of
the Warrant Agent in Calgary and Toronto as an agency at which
Warrant Certificates may be surrendered for exchange or at which
Warrants may be exercised and the Warrant Agent has accepted such
appointment. The Corporation shall give notice to the
Warrant Agent of any change of the Warrant Agency.
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Effect of
Exercise of Warrants
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Upon compliance
by the holder of any Warrant Certificate with the provisions of
Section 3.1, and subject to Section 3.3, the Common
Shares issuable pursuant to the exercise of such Warrants shall be
deemed to have been issued as fully paid and non-assessable and the
person or persons to whom such Common Shares are to be issued shall
be deemed to have become the holder or holders of record of such
Common Shares on the Exercise Date unless the transfer registers of
the Corporation shall be closed on such date, in which case the
Common Shares subscribed for shall be deemed to have been issued
and such person or persons shall be deemed to have become the
holder or holders of record of such Common Shares, on the date on
which such transfer registers are reopened.
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Within five
Business Days after the Exercise Date of a Warrant as set forth
above, the Warrant Agent shall cause to be mailed to the person or
persons in whose name or names the Common Shares have been issued,
as specified in the exercise form completed in connection with the
exercise of the Warrants, at the address specified in such exercise
form or, if so specified in such exercise form, cause to be
delivered to such person or persons at the Warrant Agency where the
Warrant Certificate was surrendered, a certificate or certificates
for the appropriate number of Common Shares subscribed
for.
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Partial
Exercise of Warrants; Fractions
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The holder of
any Warrants may acquire a number of Common Shares less than the
number which the holder is entitled to acquire pursuant to the
surrendered Warrant Certificate(s). In the event of any
exercise of a number of Warrants less than the number which the
holder is entitled to exercise, the holder of the Warrants upon
exercise thereof shall, in addition, be entitled to receive without
charge therefor, a new Warrant Certificate(s) in respect of the
balance of the Warrants which such holder was entitled to exercise
pursuant to the surrendered Warrant Certificate(s) and which were
not then exercised.
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Notwithstanding
anything herein contained including any adjustment provided for in
Article 4, the Corporation shall not be required, upon the exercise
of any Warrants, to issue fractions of Common Shares or to
distribute certificates which evidence fractional Common
Shares. In lieu of fractional Common Shares, the
Corporation shall pay to the holder who would otherwise be entitled
to receive fractional Common Shares upon an exercise of Warrants,
within 10 Business Days after the date upon which the
fractional Common Shares would have been issued, an amount in
lawful money of Canada equal to the Current Market Price of the
Common Shares as of the Exercise Date multiplied by an amount equal
to the fractional interest of Common Shares such holder would
otherwise be entitled to receive upon such exercise, provided that
the Corporation shall not be required to make any payment,
calculated as aforesaid, that is less than $10.00. The
price to be paid shall be provided by the Corporation in writing to
the Warrant Agent upon request.
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Immediately
after the Time of Expiry or the Accelerated Time of Expiry, as
applicable, all rights under any Warrant in respect of which the
right of acquisition herein and therein provided for shall not have
been exercised shall cease and terminate and such Warrant shall be
void and of no further force or effect.
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Cancellation of Surrendered
Warrants
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All Warrant
Certificates surrendered to the Warrant Agent pursuant to
Sections 2.8, 2.9, 2.10, 3.1, 3.3 and 5.1 shall be
cancelled by the Warrant Agent and, after the expiry of any period
of retention prescribed by law, destroyed by the Warrant Agent and,
upon written request by the Corporation, the Warrant Agent shall
furnish to the Corporation a destruction certificate identifying
the Warrant Certificates so destroyed, the number of Warrants
evidenced thereby and the number of Common Shares which could have
been purchased pursuant thereto.
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The Warrant
Agent shall as soon as reasonably practicable account to the
Corporation with respect to Warrants exercised. Any
monies, securities or other instruments, from time to time received
by the Warrant Agent pursuant to the exercise of Warrants shall be
received in trust for and shall be segregated and kept apart by the
Warrant Agent in trust for the Corporation.
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The Warrant
Agent shall record the particulars of any Warrants exercised, which
shall include the names and addresses of the persons who become
holders of Common Shares on exercise and the Exercise
Date. Within five Business Days of each Exercise Date,
the Warrant Agent shall provide such particulars in writing to the
Corporation.
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Common
Share Certificates
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Notwithstanding
anything herein contained, Common Shares will only be issued
pursuant to the exercise of the Warrants in compliance with
applicable securities laws of any jurisdiction. At the
instruction of the Corporation, Common Shares issued in connection
with the exercise of the Warrants may bear such legends as may be
required by applicable securities regulatory requirements,
authorities or stock exchanges.
ARTICLE 4
ADJUSTMENT OF NUMBER OF COMMON
SHARES
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Adjustment of Number of Common
Shares
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The acquisition
rights, as they relate to Common Shares, attaching to the Warrants
in effect at any date, and the Exercise Price in respect thereof,
shall be subject to adjustment from time to time as
follows:
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If and whenever
at any time during the Adjustment Period, the Corporation
shall:
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subdivide,
redivide or change outstanding Common Shares into a greater number
of shares,
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reduce, combine
or consolidate the outstanding Common Shares into a smaller number
of shares, or
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issue Common
Shares or securities exchangeable for or convertible into Common
Shares at no additional cost to the holders of all or substantially
all of the outstanding Common Shares by way of a stock dividend or
other distribution (other than the issue of Common Shares to
holders of Common Shares pursuant to their exercise of options to
receive dividends in the form of Common Shares in lieu of Dividends
Paid in the Ordinary Course on the Common Shares),
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(any of such
events in these clauses (i), (ii) and (iii) being called
a " Common Share Reorganization "), then effective
immediately after the record date at which the holders of Common
Shares are determined for the purposes of the Common Share
Reorganization, the Exercise Price shall be adjusted by multiplying
the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of Common
Shares outstanding on such record date before giving effect to such
Common Share Reorganization and the denominator of which shall be
the number of Common Shares outstanding after giving effect to such
Common Share Reorganization (including, in the case where
securities exchangeable for or convertible into Common Shares at no
additional cost are distributed, the number of Common Shares that
would have been outstanding had such securities been exchanged for
or converted into Common Shares on such record
date). Upon any adjustment to the Exercise Price
pursuant to this subsection 4.1(a), the number of Common
Shares subject to the right of purchase under each Warrant shall be
contemporaneously adjusted by multiplying the number of Common
Shares which theretofore may have been purchased under such Warrant
by a fraction of which the numerator shall be the respective
Exercise Price in effect immediately prior to such adjustment and
the denominator shall be the respective Exercise Price resulting
from such adjustment.
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If and whenever
at any time during the Adjustment Period, the Corporation shall fix
a record date for the issuance of rights, options or warrants to
all or substantially all the holders of its outstanding Common
Shares entitling them, for a period expiring not more than
45 days after such record date, to subscribe for or purchase
Common Shares (or securities convertible or exchangeable into
Common Shares) at a price per share (or having a conversion or
exchange price per share) less than 95% of the Current Market Price
of a Common Share on such record date, the Exercise Price shall be
adjusted immediately after such record date so that it shall equal
the amount determined by multiplying the Exercise Price in effect
on such record date by a fraction of which the numerator shall be
the total number of Common Shares outstanding on such record date
plus a number of Common Shares equal to the number arrived at by
dividing the aggregate price of the total number of additional
Common Shares offered for subscription or purchase (or the
aggregate conversion or exchange price of the convertible or
exchangeable securities so offered) by such Current Market Price,
and of which the denominator shall be the total number of Common
Shares outstanding on such record date plus the total number of
additional Common Shares offered for subscription or purchase or
into which the convertible or exchangeable securities so offered
are convertible or exchangeable; any Common Shares owned by or held
for the account of the Corporation or any Subsidiary shall be
deemed not to be outstanding for the purpose of any such
computation; such adjustment shall be made successively whenever
such a record date is fixed; to the extent that any such rights,
options or warrants are not exercised prior to the expiration
thereof, the Exercise Price shall be readjusted to the Exercise
Price which would then be in effect if such record date had not
been fixed or to the Exercise Price which would then be in effect
based upon the number of Common Shares (or securities convertible
or exchangeable into Common Shares) actually issued upon the
exercise of such rights, options or warrants, as the case may
be.
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If and whenever
at any time during the Adjustment Period, the Corporation shall fix
a record date for the making of a distribution to all or
substantially all the holders of its outstanding Common Shares of
(i) securities of any class, whether of the Corporation or any
other person (other than Common Shares and other than securities
distributed to holders of Common Shares pursuant to their exercise
of options to receive dividends in the form of such securities in
lieu of Dividends Paid in the Ordinary Course on the Common
Shares), (ii) rights, options or warrants (excluding those
referred to in subsection 4.1(b)), (iii) evidences of its
indebtedness or (iv) assets (excluding Dividends Paid in the
Ordinary Course) then, in each such case, the Exercise Price shall
be adjusted immediately after such record date so that it shall
equal the price determined by multiplying the Exercise Price in
effect on such record date by a fraction, of which the numerator
shall be the total number of Common Shares outstanding on such
record date multiplied by the Current Market Price of a Common
Share on such record date, less the aggregate fair market value (as
determined by the directors, which determination shall be
conclusive) of such securities shares, rights, options, warrants,
evidences of indebtedness or assets so distributed, and of which
the denominator shall be the total number of Common Shares
outstanding on such record date multiplied by such Current Market
Price; any Common Shares owned by or held for the account of the
Corporation or any Subsidiary shall be deemed not to be outstanding
for the purpose of any such computation; such adjustment shall be
made successively whenever such a record date is fixed; to the
extent that such distribution is not so made, the Exercise Price
shall be readjusted to the Exercise Price which would then be in
effect if such record date had not been fixed or to the Exercise
Price which would then be in effect based upon such shares or
rights, options or warrants or evidences of indebtedness or assets
actually distributed, as the case may be; in clause (iv) of
this subsection 4.1(c) the term " Dividends Paid in the
Ordinary Course " shall include the value of any securities or
other property or assets distributed in lieu of cash Dividends Paid
in the Ordinary Course at the option of Shareholders.
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If and whenever
at any time during the Adjustment Period, there is a
reclassification of the Common Shares or a capital reorganization
of the Corporation (other than as described in
subsection 4.1(a)) or a consolidation, amalgamation,
arrangement or merger of the Corporation with or into any other
body corporate, trust, partnership or other entity (other than a
consolidation, amalgamation, arrangement or merger which does not
result in any reclassification of the outstanding Common Shares or
a change of the Common Shares into other securities), or a sale or
conveyance of the property and assets of the Corporation as an
entirety or substantially as an entirety to any other body
corporate, trust, partnership or other entity or a liquidation,
dissolution or winding up of the Corporation (any of such events
being hereinafter called a " Capital Reorganization "), any
Warrantholder who has not exercised its right of acquisition prior
to the effective date of such Capital Reorganization, upon the
exercise of such right thereafter, shall be entitled to receive and
shall accept, in lieu of the number of Common Shares then sought to
be acquired by it, the number of shares or other securities or
property of the Corporation or of the body corporate, trust,
partnership or other entity resulting from such Capital
Reorganization, or of the parent entity of such resulting entity,
or of such entity to which such sale or conveyance has been made,
as the case may be, that such Warrantholder would have been
entitled to receive on such Capital Reorganization, if, on the
record date or the effective date thereof, as the case may be, the
Warrantholder had been the registered holder of the number of
Common Shares sought to be acquired by it and to which it was
entitled to acquire upon exercise of the Warrants. If
determined appropriate by the Warrant Agent to give effect to or to
evidence the provisions of this subsection 4.1(d), the
Corporation, its successor, or such purchasing body corporate,
partnership, trust or other entity, as the case may be, shall,
prior to or contemporaneously with any such Capital Reorganization,
enter into an indenture which shall provide, to the extent
possible, for the application of the provisions set forth in this
Supplemental Indenture with respect to the rights and interests
thereafter of the Warrantholders to the end that the provisions set
forth in this Supplemental Indenture shall thereafter
correspondingly be made applicable, as nearly as may reasonably be,
with respect to any shares, other securities or property to which a
Warrantholder is entitled on exercise of its acquisition rights
thereafter. Any indenture entered into between the
Corporation and the Warrant Agent pursuant to the provisions of
this subsection 4.1(d) shall be a supplemental indenture
entered into pursuant to the provisions of Article
8. Any indenture entered into between the Corporation,
any successor to the Corporation or such purchasing body corporate,
partnership, trust or other entity and the Warrant Agent shall
provide for adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided in this Section 4.1
and which shall apply to successive Capital
Reorganizations.
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In any case in
which this Section 4.1 shall require that an adjustment shall
become effective immediately after a record date for an event
referred to herein, the Corporation may defer, until the occurrence
of such event, issuing to the holder of any Warrant exercised after
such record date and before the occurrence of such event the
additional Common Shares or other securities or property issuable
upon such exercise by reason of the adjustment required by such
event; provided, however, that the Corporation shall deliver to
such holder an appropriate instrument evidencing such holder's
right to receive such additional Common Shares or other securities
or property upon the occurrence of the event requiring such
adjustment and the right to receive any distributions made on such
additional Common Shares or other securities or property declared
in favour of holders of record of Common Shares or such other
securities or property on and after the relevant date of exercise
or such later date as such holder would, but for the provisions of
this subsection 4.1(e), have become the holder of record of
such additional Common Shares or other securities or property
pursuant to this Section 4.1.
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In any case in
which subsections 4.1(a), 4.1(b) or 4.1(c) require that an
adjustment be made to the Exercise Price, no such adjustment shall
be made if, the holders of the outstanding Warrants receive the
Common Shares or securities exchangeable for or convertible into
Common Shares referred to in subsection 4.1(a), the rights,
options or warrants referred to in subsection 4.1(b) or the
securities, rights, options, warrants, evidences of indebtedness or
assets referred to in subsection 4.1(c), as the case may be,
in such kind and number as they would have received if they had
been holders of Common Shares on the applicable record date or
effective date, as the case may be, by virtue of their outstanding
Warrant having then been exercised into Common Shares at the
Exercise Price in effect on the applicable record or effective
date, as the case may be.
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The adjustments
provided for in this Section 4.1 are cumulative and shall, in
the case of adjustments to the Exercise Price, be computed to the
nearest whole cent and shall apply to successive subdivisions,
redivisions, reductions, combinations, consolidations,
distributions, issues or other events resulting in any adjustment
under the provisions of this Section 4.1, provided that,
notwithstanding any other provision of this Section, no adjustment
of the Exercise Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the
Exercise Price then in effect or a change in the number of Common
Shares purchasable upon exercise by at least one one-hundredth of a
Common Share, as the case may be; provided, however, that any
adjustments which by reason of this subsection 4.1(g) are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment.
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After any
adjustment pursuant to this Section 4.1, the term " Common
Shares " where used in this Supplemental Indenture shall be
interpreted to mean securities of any class or classes which, as a
result of such adjustment and all prior adjustments pursuant to
this Section 4.1, the Warrantholder is entitled to receive
upon the exercise of such holder's Warrant and the number of Common
Shares indicated by any exercise made pursuant to a Warrant shall
be interpreted to mean the number of Common Shares or other
property or securities a Warrantholder is entitled to receive, as a
result of such adjustment and all prior adjustments pursuant to
this Section 4.1, upon the full exercise of a
Warrant.
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Entitlement to Shares on Exercise of
Warrant
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All shares of
any class or other securities or property which a Warrantholder is
at the time in question entitled to receive on the exercise of its
Warrant, whether or not as a result of adjustments made pursuant to
this Article 4, shall, for the purposes of the interpretation of
this Supplemental Indenture, be deemed to be shares which such
Warrantholder is entitled to acquire pursuant to such
Warrant.
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No
Adjustment for Stock Options or Warrants
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Anything in
this Article 4 to the c
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