Filing Details
- Accession Number:
- 0001654954-18-010383
- Form Type:
- 13D Filing
- Publication Date:
- 2018-09-21 16:30:03
- Filed By:
- Odidi Holdings Inc.
- Company:
- Intellipharmaceutics Intl Inc (NASDAQ:IPCI)
- Filing Date:
- 2018-09-21
- SEC Url:
- 13D Filing
Ownership Summary
Please notice the below summary table is generated without human intervention and may contain errors. Please refer to the complete filing displayed below for exact figures.
| Name | Sole Voting Power | Shared Voting Power | Sole Dispositive Power | Shared Dispositive Power | Aggregate Amount Owned Power | Percent of Class |
|---|---|---|---|---|---|---|
| Odidi Holdings Inc | 578,131 | 0 | 578,131 | 0 | 578,131 | 13.28% |
| Isa Odidi | 0 | 1,099,385 | 0 | 1,099,385 | 1,099,385 | 22.55% |
| Amina Odidi | 0 | 1,099,385 | 0 | 1,099,385 | 22.55% |
Filing
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Act of 1934
(Amendment No. 4)*
| INTELLIPHARMACEUTICS
INTERNATIONAL INC. |
| (Name
of Issuer) |
| Common
Shares, no par value |
| (Title
of Class of Securities) |
| 458173309 |
| (CUSIP
Number) |
| |
| Odidi
Holdings Inc. 30
Worcester Road, Toronto, Ontario M9W 5X2 (416)
798-3001 Attention:
Amina Odidi, President and Chief Operating Officer |
| (Name,
Address and Telephone Number of Person Authorized
to receive Notices and Communications) |
| September
10, 2018 |
| (Date
of Event which Requires Filing of this Statement) |
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of
§§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. [ ]
Note: Schedules filed in
paper format shall include a signed original and five copies of the
Schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a
reporting person’s initial filing on this form with respect
to the subject class of securities, and for any subsequent
amendment containing information which would alter disclosures
provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be “filed” for the purpose of section
18 of the Securities Exchange Act of 1934 (“Act”) or
otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see
the Notes).
|
CUSIP NO. 458173309 | | |
| 1. | NAMES
OF REPORTING PERSONS Odidi
Holdings Inc. | |
| 2. | CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A)
[x] (B) [
] | |
| 3. | SEC USE
ONLY | |
| 4. | SOURCE
OF FUNDS (SEE INSTRUCTIONS) OO | |
| 5. | CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) or 2(E) [ ] | |
| 6. | CITIZENSHIP OR
PLACE OF ORGANIZATION Ontario,
Canada | |
| NUMBER
OF SHARES | 7. | SOLE
VOTING POWER 578,131* |
| BENEFICIALLY OWNED
BY | 8. | SHARED
VOTING POWER 0 |
| EACH REPORTING | 9. | SOLE
DISPOSITIVE POWER 578,131* |
| PERSON
WITH | 10. | SHARED
DISPOSITIVE POWER 0 |
| 11. | AGGREGATE AMOUNT
BENEFICIALLY OWNED BY EACH REPORTING PERSON 578,131* | |
| 12. | CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS) [ ] | |
| 13. | PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.28% | |
| 14. | TYPE OF
REPORTING PERSON* CO | |
* On
September 12, 2018, Intellipharmaceutics International Inc. (the
“Issuer”) filed an amendment to the Issuer’s
articles to implement a one-for-10 reverse split, known as a share
consolidation under Canadian law (the “reverse split”).
The number of Common Shares (as defined below) disclosed herein
reflects the reverse split. See Item 5.
| CUSIP NO. 458173309 | | |
| 1. | NAMES
OF REPORTING PERSONS Isa
Odidi | |
| 2. | CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A)
[x] (B) [
] | |
| 3. | SEC USE
ONLY | |
| 4. | SOURCE
OF FUNDS (SEE INSTRUCTIONS) PF | |
| 5. | CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) or 2(E) [ ] | |
| 6. | CITIZENSHIP OR
PLACE OF ORGANIZATION Canada | |
| NUMBER
OF SHARES | 7. | SOLE
VOTING POWER 0 |
| BENEFICIALLY OWNED
BY | 8. | SHARED
VOTING POWER 1,099,385 (includes
309,588 shares issuable upon exercise of options and 211,666 shares
issuable on conversion of debt)* |
| EACH REPORTING | 9. | SOLE
DISPOSITIVE POWER 0 |
| PERSON
WITH | 10. | SHARED
DISPOSITIVE POWER 1,099,385 (includes
309,588 shares issuable upon exercise of options and 211,666 shares
issuable on conversion of debt)* |
| 11. | AGGREGATE AMOUNT
BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,099,385* | |
| 12. | CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS) [ ] | |
| 13. | PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.55% | |
| 14. | TYPE OF
REPORTING PERSON* IN | |
*
The number of Common Shares disclosed herein reflects the reverse
split. See Item 5.
| CUSIP NO. 458173309 | | |
| 1. | NAMES
OF REPORTING PERSONS Amina
Odidi | |
| 2. | CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A)
[x] (B) [
] | |
| 3. | SEC USE
ONLY | |
| 4. | SOURCE
OF FUNDS (SEE INSTRUCTIONS) PF | |
| 5. | CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) or 2(E) [ ] | |
| 6. | CITIZENSHIP OR
PLACE OF ORGANIZATION Canada | |
| NUMBER
OF SHARES | 7. | SOLE
VOTING POWER 0 |
| BENEFICIALLY OWNED
BY | 8. | SHARED
VOTING POWER 1,099,385 (includes
309,588 shares issuable upon exercise of options and 211,666 shares
issuable on conversion of debt)* |
| EACH REPORTING | 9. | SOLE
DISPOSITIVE POWER 0 |
| PERSON
WITH | 10. | SHARED
VOTING POWER 1,099,385 (includes
309,588 shares issuable upon exercise of options and 211,666 shares
issuable on conversion of debt)* |
| 11. | AGGREGATE AMOUNT
BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,099,385* | |
| 12. | CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS) [ ] | |
| 13. | PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.55% | |
| 14. | TYPE OF
REPORTING PERSON* IN | |
*
The number of Common Shares disclosed herein reflects the reverse
split. See Item 5.
| Item
2. | Identity
and Background. |
This
Amendment No. 4 amends and supplements the Schedule 13D of Odidi
Holdings Inc., an Ontario, Canada corporation
(“Holdings”), Isa Odidi, an individual (“I.
Odidi”), and Amina Odidi, an individual (“A.
Odidi” and collectively with Holdings and I. Odidi, the
“Reporting Persons”), with respect to the common
shares, no par value (the “Common Shares”), of
Intellipharmaceutics International Inc., a Canada corporation (the
“Issuer”) whose principal executive offices are located
at 30 Worcester Road, Toronto, Ontario M9W 5X2. Pursuant to Rule
13d-1(f)(1) promulgated under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), this Amendment No. 4
is being filed by the Reporting Persons.
This
Amendment No. 4, the previous amendments to the Reporting
Persons’ Schedule 13D and the initial Schedule 13D are
hereinafter collectively referred to as the
“Statement.” Except as amended and supplemented hereby,
there has been no change in the information contained in the
Statement. The Reporting Persons are making this single, joint
filing because they have agreed to act as a “group”
within the meaning of Section 13(d)(3) of the Exchange
Act.
| Item
3. | Source
and Amount of Funds or Other Consideration. |
On
September 10, 2018, the Issuer completed a private placement
financing of an unsecured convertible debenture in the principal
amount of $500,000 (the “2018 Convertible Debenture”),
which will mature September 1, 2020. The 2018 Convertible Debenture
bears interest at a rate of 10% per annum, payable monthly, is
pre-payable at any time at the option of the Issuer, and is
convertible at any time into 166,666 Common Shares at a conversion
price of $3.00 per Common Share at the option of the holder. I.
Odidi and A. Odidi provided the Issuer with the $500,000 of
proceeds for the 2018 Convertible Debenture. I. Odidi and A. Odidi
utilized their personal funds to purchase the 2018 Convertible
Debenture.
The
foregoing description of the 2018 Convertible Debenture does not
purport to be complete and is qualified in its entirety by
reference to the document attached hereto as Exhibit 4, and such
document is incorporated herein by reference.
| Item
4. | Purpose
of Transaction. |
The
2018 Convertible Debenture was acquired by I. Odidi and A. Odidi in
order to make a loan to the Issuer and not with a view toward the
sale or other distribution of the 2018 Convertible Debenture. I.
Odidi is Chairman of the Board of Directors and Chief Executive
Officer of the Issuer and A. Odidi is President, Chief Operating
Officer and a director of the Issuer. In such capacities, and as
principal shareholders of the Issuer, I. Odidi and A. Odidi may be
in a position to influence decisions on any plans or proposals of
the type described in paragraphs (a) through (j) of Item 4 of the
Statement.
Depending
upon market conditions and other factors that they may deem
material to their investment decisions, I. Odidi and A. Odidi may
convert the 2018 Convertible Debenture into Common Shares or
dispose of the 2018 Convertible Debenture (or any underlying Common
Shares), and the Reporting Persons may otherwise make purchases of
additional securities of the Issuer, or may dispose of all or a
portion of the securities of the Issuer that they now own or
hereafter may acquire. Except as set forth in this Item 4, the
Reporting Persons do not have any present plans or proposals that
relate to or that would result in any of the actions specified in
clauses (a) through (j) of Item 4 of the
Statement.
| Item
5. | Interest
in Securities of the Issuer. |
(a)-(b)
On
September 10, 2018, there were 4,353,678 Common Shares outstanding
(post-reverse split). As of the date of this Amendment No. 4,
Holdings beneficially owned 578,131 Common Shares of the Issuer,
comprising 13.28% of the issued and outstanding Common Shares as of
September 20, 2018. In addition, as of the date of this Amendment
No. 4, each of I. Odidi and A. Odidi beneficially owned 1,099,385
and 1,099,385 Common Shares of the Issuer, respectively, comprising
22.55% and 22.55% of the issued and outstanding Common Shares,
respectively, as of September 10, 2018. Such amounts include (i)
578,131 Common Shares owned of record by Holdings, (ii) 248,755
Common Shares issuable upon exercise of immediately exercisable
options jointly owned by I. Odidi and A. Odidi (which amount gives
effect to the vesting in accordance with applicable vesting
provisions), (iii) 30,000 Common Shares issuable upon exercise of
immediately exercisable options beneficially owned separately by
each of I. Odidi and A. Odidi, (iv) 7,500 Common Shares issuable
upon exercise of exercisable options beneficially owned separately
by each of I. Odidi and A. Odidi, (v) 5,000 Common Shares issuable
upon exercise of exercisable options beneficially owned separately
by each of I. Odidi and A. Odidi, (vi) 7,000 Common Shares issuable
upon exercise of exercisable options beneficially owned separately
by each of I. Odidi and A. Odidi, (vii) 9,000 Common Shares
issuable upon exercise of exercisable options beneficially owned
separately by each of I. Odidi and A. Odidi, (viii) 2,333 Common
Shares issuable upon exercise of exercisable options beneficially
owned separately by each of I. Odidi and A. Odidi, (ix) 45,000
Common Shares issuable upon conversion of a convertible debenture
jointly owned by I. Odidi and A. Odidi and described in Amendment
No. 2 to this Statement (the “2013 Convertible
Debenture” and collectively with the 2018 Convertible
Debenture, the “Debentures”), and (x) 166,666 Common
Shares issuable upon conversion of a 2018 Convertible Debenture
jointly owned by I. Odidi and A. Odidi and described
herein.
The
Common Shares reported herein as beneficially owned by I. Odidi and
A. Odidi do not include any Common Shares issuable upon exercise of
unvested options owned jointly by I. Odidi and A. Odidi which, as
previously reported, vest upon the Issuer or its subsidiaries
attaining certain milestones related to FDA filings and approvals
for the Issuer’s drugs.
Pursuant
to the terms of the Convertible Debentures and the options issued
to I. Odidi and A. Odidi, the conversion and exercise prices and
number of Common Shares issuable upon conversion or exercise
thereof were adjusted as a result of the reverse split of Common
Shares implemented by the Issuer in September 2018 of its
outstanding Common Shares on the basis of a ratio of one post-split
Common Share for every 10 pre-split Common Shares and applicable
anti-dilution provisions.
(c) As
noted in Item 3, on September 10, 2018, I. Odidi and A. Odidi
purchased the 2018 Convertible Debenture (which is convertible at
any time into 166,666 Common Shares at a conversion price of $3.00
per Common Share at the option of the holder) for
$500,000.
(d) The
Reporting Persons affirm that no persons other than the Reporting
Persons have the right to receive, or have the power to direct the
receipt of, dividends from, or the proceeds from the sale of, the
Common Shares owned by the Reporting Persons.
(e) It
is inapplicable for the purposes hereof to state the date on which
the Reporting Persons ceased to be the owner of more than five
percent (5%) of the Common Shares.
Item
6.
Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
Item 6
of the Statement is hereby amended and supplemented as
follows:
Except
as described in Items 3, 4 and 5 of the Statement (as amended and
supplemented hereby), which are incorporated by reference in this
Item 6, there are no contracts, arrangements, understandings or
relationships with the Reporting Persons or any other person with
respect to the securities of the Issuer, including but not limited
to transfer or voting of any of the securities, finders’
fees, joint ventures, loan or option arrangements, puts or calls,
guaranties of profits, division of profits or loss or the giving or
withholding of proxies.
Item
7.
Material to be Filed as Exhibits
Exhibit
4. 10% Convertible Term Debenture of Intellipharmaceutics
International Inc., dated September 10, 2018.
SIGNATURE
After
reasonable inquiry, and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this
statement is true, complete and correct.
DATE:
September 21, 2018
| | ODIDI
HOLDINGS INC. | | ||
| | | | | |
| | By: | /s/
Amina Odidi | ||
| | | Name: | Amina
Odidi | |
| | | Title: | President | |
| | | | | |
| | | | | |
| | /s/ Isa
Odidi | | ||
| | Isa
Odidi | | ||
| | | | | |
| | | | | |
| | /s/
Amina Odidi | | ||
| | Amina
Odidi | | ||
Exhibit
4
10% CONVERTIBLE TERM DEBENTURE
DUE: September 1, 2020
PRINCIPAL SUM: US$500,000.00 DATE: September 10,
2018
PROMISE
1. Promise to Pay:
Intellipharmaceutics International Inc., a corporation incorporated
under the laws of Canada (the “Borrower”), for value received,
hereby acknowledges itself indebted and covenants and promises to
pay to or to the order of Dr. Isa Odidi and Dr. Amina Odidi
(collectively the “Lender”), at the Lender’s
address set out in section 19 hereof, or at such other place as the
Lender may designate by notice in writing to the Borrower, on
September 1, 2020 (the “Maturity Date”), the principal
amount of $500,000.00 in lawful money of the United States of
America and to pay interest thereon on at a rate of ten per cent
(10%) per annum, as well after as before demand and as well after
as before default or judgment with interest on overdue interest at
the same rate. From the date hereof to and including the Maturity
Date, interest shall be calculated and paid monthly on the last
business day of each calendar month.
CONVERSION
2. Exercise: At any time and from
time to time after the date hereof on not less than three (3)
days’ and not more than ten (10) days’ written notice
to the Borrower, the Lender shall have the right to convert any or
all of the principal owing to it hereunder (as at the date of
election to so convert) into fully paid and non-assessable common
shares (the “Common
Shares”) of the Borrower at a price of US$0.30 per
share (the “Exercise
Price”). Such conversion may be effected by the
tendering of this Debenture at the office of the Borrower,
accompanied by a written direction of conversion signed by the
Lender notifying the Borrower as to the exercise of the right of
conversion and specifying the amount of principal hereunder in
respect of which this Debenture is converted and setting forth the
name and address of the person(s) in whose name(s) the shares
issuable upon such conversion are to be registered. This Debenture
may, at the Lender’s option, be converted at any time after
the date hereof, in whole, or from time to time in part, and for so
long as any amount remains outstanding hereunder. For greater
certainty, no conversion in part or in whole of the principal owing
under the Debenture shall extinguish or satisfy, or relieve the
Borrower of its obligation to pay the balance of the principal
owing hereunder and any interest on such principal amount accruing
prior to the effective date of such conversion.
3. Calculation of Purchase Price:
“Purchase Price”
means, in respect of any conversion of this Debenture in whole or
in part, the aggregate of the Exercise Price applicable on such
conversion multiplied by the number of Common Shares which the
Lender gives notice in writing to the Borrower that the Lender
elects to purchase via the conversation in whole or part of the
amounts owing under this Debenture at such time.
4. Share Issuance: As promptly as
practicable after the surrender of this Debenture for conversion,
the Borrower shall issue to the Lender or its nominee(s) a
certificate or certificates representing the number of fully paid
and non-assessable Common Shares of the Borrower into which all or
any portion of the indebtedness hereunder has been converted and,
in the event that any amounts remain outstanding hereunder after
giving effect to such conversion, the Lender shall make a notation
hereon of the principal amount of such unconverted indebtedness for
the aggregate of principal and interest that remains owing
hereunder.
5. No Fractional Shares: No
fractional share or scrip representing a fractional share shall be
required to be issued upon the conversion of this Debenture. If the
conversion of this Debenture would otherwise result in a fractional
share, the Borrower shall, in lieu of issuing such fractional
share, pay to the Lender an amount equal to the value of the
fractional share based upon the Exercise Price for a whole
share.
6. Timing: The conversion of this
Debenture shall be deemed to have been made in full at the close of
business on the date at which time the entire balance owing under
this Debenture is tendered for conversion, so that the
Lender’s rights in respect of the converted portion shall
terminate at such time, and the person or persons entitled to
receive the shares into which the whole or any part of this
Debenture is converted shall be treated, as between the Borrower
and such person or persons, as having become the holder or holders
of record of such shares at such time.
7. Pre-Payment: The Borrower may
prepay this Debenture in whole or in part at any time without prior
written notice to the Lender or any bonus or penalty. Any notice of
prepayment from the Borrower to the Lender shall be without
prejudice to the Lender’s right to convert all or any part of
the principal amounts that remain outstanding under this Debenture
into common shares of the Borrower in accordance with the
provisions of the Debenture.
8. Anti-Dilution:
(a)
If and whenever at
any time while this Debenture is outstanding, the
Borrower:
(i)
issues any Common
Shares to all or substantially all of the holders of Common Shares
by way of a stock dividend or other distribution (other than the
issue of Common Shares to holders of Common Shares as dividends by
way of stock dividend in lieu of a cash Dividend Paid in the
Ordinary Course or pursuant to any dividend reinvestment plan in
force from time to time);
(ii)
subdivides or
re-divides the outstanding Common Shares into a greater number of
Common Shares; or
(iii)
combines, reduces
or consolidates the outstanding Common Shares into a lesser number
of Common Shares;
then,
in each such event:
(iv)
the number of
Common Shares obtainable on conversion of the amounts outstanding
under this Debenture will be adjusted immediately after the
effective date of the events referred to in (ii) or (iii) or the
record date for the issue of the Common Shares referred to in (i)
by multiplying the number of Common Shares theretofore obtainable
on conversion of the amounts outstanding under this Debenture by
the fraction which is the reciprocal of the fraction referred to in
section 8(a)(v)(B); and
(v)
the Exercise Price
will, on the record date for such event, be adjusted to a price
which is equal to the product of:
(A)
the Exercise Price
in effect immediately prior to such date; and
(B)
the fraction of
which:
(X)
the numerator is
equal to the total number of Common Shares that are outstanding on
such date before giving effect to such event; and
(Y)
the denominator is
equal to the total number of Common Shares that are outstanding on
such date after giving effect to such event.
Such
adjustments will be made successively whenever any event referred
to in this section shall occur and any such issue of Common Shares
by way of a stock dividend or other distribution will be deemed to
have been made on the record date for such stock dividend or other
distribution for the purpose of calculating the number of
outstanding Common Shares under sections 8(b) and
8(c).
(b)
If and whenever at
any time while this Debenture is outstanding, the Borrower fixes a
record date for the issuance of rights, options or warrants to all
or substantially all of the holders of Common Shares entitling the
holders thereof, within a period expiring not more than 45 days
after the date of issue thereof, to subscribe for or purchase
Common Shares (or securities convertible into or exchangeable for
Common Shares) at a price per share (or having a conversion or
exercise price per share) of less than 95% of the Current Market
Price of the Common Shares on the earlier of such record date and
the date on which the Borrower announces its intention to make such
issuance, then, in each case:
(i)
the number of
Common Shares obtainable on conversion of the amounts outstanding
under this Debenture will be adjusted immediately after such record
date so that it will equal the number determined by multiplying the
number of Common Shares theretofore obtainable on such record date
by a fraction which is the reciprocal of the fraction referred to
in section 8(b)(ii)(B); and
(ii)
the Exercise Price
will be adjusted immediately after such record date to a price
which is equal to the product of:
(A)
the Exercise Price
in effect on such record date; and
(B)
the fraction of
which:
(X)
the numerator is
equal to the aggregate of:
(I)
the total number of
Common Shares that are outstanding on such record date;
and
(II)
the number
determined by dividing the aggregate price of the total number of
additional Common Shares so offered for subscription or purchase
(or the aggregate conversion or exchange price of the convertible
or exchangeable securities so offered) by the Current Market Price
of the Common Shares on the earlier of such record date and the
date on which the Borrower announces its intention to make such
issuance; and
(Y)
the denominator is
equal to the aggregate of:
(I)
the total number of
Common Shares that are outstanding on such record date;
and
(II)
the total number of
additional Common Shares so offered for subscription or purchase
(or into or for which the convertible or exchangeable securities so
offered are convertible or exchangeable).
Such
adjustment will be made successively whenever such a record date is
fixed, provided that if two or more such record dates or record
dates referred to in section 8(c) are fixed within a period of 25
trading days, such adjustment will be made successively as if each
of such record dates occurred on the earliest of such record dates.
To the extent that any such rights, options or warrants are not so
issued or any such rights, options or warrants are not exercised
prior to the expiration thereof, the number of Common Shares
obtainable on conversion of the amounts outstanding under this
Debenture will then be readjusted to that which would then be in
effect if such record date had not been fixed or to that which
would then be in effect based upon the number of Common Shares (or
securities convertible into or exchangeable for Common Shares)
actually issued upon the exercise of such rights, options or
warrants, as the case may be.
(c)
If and whenever at
any time while this Debenture is outstanding, the Borrower fixes a
record date for the making of a distribution to all or
substantially all of the holders of Common Shares of:
(i)
shares of any class
other than Common Shares whether of the Borrower or any other
corporation (other than shares distributed to holders of Common
Shares as Dividends Paid in the Ordinary Course (as hereinafter
defined) as stock dividends);
(ii)
rights, options or
warrants (other than rights, options or warrants exercisable by the
holders thereof not more than 45 days after the date of issue
thereof);
(iii)
evidences of
indebtedness; or
(iv)
cash, securities or
other property or assets (other than cash Dividends Paid in the
Ordinary Course);
then,
in each case:
(v)
the number of
Common Shares obtainable on conversion of the amounts outstanding
under this Debenture shall be adjusted immediately after such
record date so that it will equal the number determined by
multiplying the number of Common Shares theretofore obtainable on
conversion of the amounts outstanding under this Debenture on such
record date by a fraction which is the reciprocal of the fraction
referred to in section 8(c)(vi)(B); and
(vi)
the Exercise Price
will be adjusted immediately after such record date to a price
which is equal to the product of:
(A)
the Exercise Price
in effect on such record date; and
(B)
the fraction of
which:
(X)
the numerator is
equal to the amount by which:
(I)
the product of (x)
the total number of Common Shares that are outstanding on such
record date and (y) the Current Market Price of the Common Shares
on the earlier of such record date and the date on which the
Borrower announces its intention to make such
distribution;
exceeds
(II)
the aggregate fair
market value (as determined by the directors at the time such
distribution is authorized) of such shares rights, options or
warrants or evidences of indebtedness or cash, securities or other
property or assets so distributed; and
(Y)
the denominator is
equal to the product determined under clause (X)
above.
Such
adjustment will be made successively whenever such a record date is
fixed, provided that if two or more such record dates or record
dates referred to in section 8(b) are fixed within a period of 25
trading days, such adjustment will be made successively as if each
of such record dates occurred on the earliest of such record dates.
To the extent that such distribution is not so made or to the
extent that any such rights, options or warrants so distributed are
not exercised prior to the expiration thereof, the number of Common
Shares obtainable on conversion of the amounts outstanding under
this Debenture will then be readjusted to that which would then be
in effect if such record date had not been fixed or to that which
would then be in effect based upon such shares or rights, options
or warrants or evidences of indebtedness or cash, securities or
other property or assets actually distributed or based upon the
number or amount of securities or the property or assets actually
issued or distributed upon the exercise of such rights, options or
warrants, as the case may be.
(d)
In the event that
any adjustment of the Exercise Price is made pursuant to sections
8(a), (b) and (c), the number of Common Shares that may be
purchased upon the conversion of the amounts outstanding under this
Debenture will, contemporaneously with such adjustment of such
Exercise Price, be adjusted to a number which is equal to the
product of:
(i)
the total number of
Common Shares so purchaseable immediately before such adjustment of
such Exercise Price; and
(ii)
the fraction which
is the reciprocal of the fraction used in such adjustment of such
Exercise Price.
(e)
If and whenever at
any time while this Debenture is outstanding there is:
(i)
any
reclassification of the Common Shares at any time outstanding, any
change of the Common Shares into other shares or any other capital
reorganization of the Borrower other than as described in sections
8(a), (b) and (c);
(ii)
any consolidation,
arrangement, amalgamation, merger or other form of business
combination of the Borrower with or into any other body corporate,
trust, partnership or other entity resulting in a reclassification
of the outstanding Common Shares, any change of the Common Shares
into other shares or any other capital reorganization of the
Borrower other than as described in sections 8(a), (b) and (c);
or
(iii)
any sale, lease,
exchange or transfer of the undertaking or assets of the Borrower
as an entirety or substantially as an entirety to another
corporation or entity;
then:
(iv)
the holder hereof
will be entitled to receive and will accept, in lieu of the number
of Common Shares then to be acquired by it upon conversion of the
amounts outstanding under this Debenture;
the
kind and number or amount of shares or other securities or property
that the holder would have been entitled to receive as a result of
such event if, on the record date or effective date thereof, as the
case may be, the holder had been the registered holder of the
number of Common Shares to which the holder was theretofore
entitled upon such exercise or deemed exercise. If necessary as a
result of any such event, appropriate adjustments will be made in
application of the provisions set forth in this section 8 with
respect to the rights and interests of the holder so that the
provisions set forth in this section 8 will thereafter
correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares or other securities or property to which
a holder of this Debenture is entitled on conversion of the amounts
outstanding under this Debenture. Any such adjustment will be made
by and set forth in amendment hereto approved by the directors and
will for all purposes be conclusively deemed to be an appropriate
adjustment.
(f)
As a condition
precedent to taking any action that would require an adjustment
pursuant to this section 8, the Borrower will take all action which
may, in the opinion of counsel to the Borrower, be necessary in
order that the Borrower, or any successor to the Borrower or
successor to the undertaking and assets of the Borrower, will be
obligated to and may validly and legally issue as fully paid and
non-assessable all the Common Shares or other shares or securities
or property to which the holder hereof would be entitled to receive
thereafter on conversion of the amounts outstanding under this
Debenture.
(g)
The Borrower will
give notice to the holder hereof, at least 10 days prior to the
record date for the making of such distribution, of:
(i)
its intention to
make a distribution referred to in section 8(c) which results in
the fraction calculated pursuant to section 8(c)(vi)(B) thereof
being a negative number; and,
(ii)
any action or event
that would require an adjustment pursuant to this section
8.
9. Adjustment Rules:
(a)
The following rules
and procedures will be applicable to adjustments made pursuant to
section 8, including any readjustments:
(i)
the adjustments
provided for in section 8 are cumulative, will, in the case of any
adjustment to the Exercise Price, be computed to the nearest
one-tenth of one cent and, subject to section 9(a)(ii) below, will
apply (without duplication) to successive subdivisions,
consolidations, distributions, issuances or other events that
require such an adjustment;
(ii)
no such adjustment
in the Exercise Price will be made unless the price adjustment
would result in an increase or decrease of at least 1% in such
Exercise Price, provided that any such adjustment which, except for
the provisions of this section 9(a)(ii), would otherwise have been
required to be made, will be carried forward and taken into account
in any subsequent adjustment;
(iii)
for the purposes of
sections 8(a), (b) and (c) there will be deemed not to be
outstanding:
(A)
any Common Share
owned or held for the account of any subsidiary of the Borrower
that is a wholly-owned subsidiary; and
(B)
that percentage of
the Common Shares owned by or held for the account of any
subsidiary of the Borrower that is not a wholly--owned subsidiary,
that is equal to the direct and indirect percentage interest of the
Borrower in the outstanding shares of such subsidiary that carry a
residual right to participate to an unlimited degree in its
earnings and in its assets on liquidation or
winding-up;
(iv)
no such adjustment
will be made in respect of an event described in of section 8(a)(i)
or section 8(b) or 8(c) if the holders are entitled to participate
in such event, or are entitled to participate within 45 days in a
comparable event, on the same terms, mutatis mutandis, as if the
holder had converted the amounts outstanding under this Debenture
immediately before the record date for or effective date of such
event;
(v)
in the absence of a
resolution of the directors fixing a record date at which holders
of Common Shares are determined for purposes of any event referred
to in section 8, the Borrower will be deemed to have fixed as the
record date therefor the date on which the event is effected or
such other date as may be required by law; and
(vi)
no fractional
Common Share will be issued upon the conversion of the amounts
outstanding under this Debenture and accordingly if as a result of
any such adjustment the holder hereof becomes entitled to acquire a
fractional Common Share the holder shall have the right to acquire
only the next lowest whole number of Common Shares and no payment
or other adjustment will be made with respect to the fractional
Common Share so disregarded.
(b)
In any case in
which section 8 requires an adjustment to take effect on or
immediately after the record date for an event referred to therein,
the Borrower may postpone, until the occurrence and consummation of
such event, issuing to the holder hereof after such record date and
before the occurrence and consummation 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 Borrower will 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 and consummation of such event and the
right to receive any dividend or other distribution in respect of
such additional Common Shares or other securities or property
declared in favour of the holders of record of Common Shares or of
such other securities or property as such holder would, but for the
provisions of this section 9(b), have become the holder of record
of such additional Common Shares or of such other securities or
property.
(c)
If and whenever at
any time while this Debenture is outstanding the Borrower takes any
action affecting or relating to the Common Shares, other than any
action described in section 8, which in the opinion of the
directors of the Borrower would prejudicially affect the rights of
the holder hereof, the conversion rights in effect at any date
arising hereunder will be adjusted by the directors in such manner,
if any, and at such time, as the directors may in their sole
discretion determine to be equitable in the circumstances to such
holder, subject to obtaining prior approval of the Toronto Stock
Exchange before giving effect to any such change. Failure of the
directors to take any action so as to provide for any such
adjustment on or before the effective date of any such action by
the Borrower affecting or relating to the Common Shares will be
conclusive evidence that the directors have determined that it is
equitable to make no such adjustment in the
circumstances.
(d)
In the event of any
question arising with respect to the adjustments provided for in
this section 9, including any readjustment, such question shall be
conclusively determined by the firm of chartered accountants duly
appointed as auditors of the Borrower for the time being or, if
they are unable or unwilling to act, by such firm of chartered
accountants as is appointed by the Borrower. The Borrower will
provide such accountants access to all necessary records of the
Borrower. Such determination will be binding upon the Borrower and
holder hereof.
10. Definitions: In these sections
8, 9 and 10, unless there is something in the subject matter or
context inconsistent therewith:
(a)
“Current Market Price”, on any
date, means the average, during the period of 20 consecutive
trading days ending on the fifth trading day before such date, of
the average of all prices per share at which the Common Shares have
traded on the stock exchange having the greatest trading volume in
such shares in such period (the “Relevant Stock Exchange”) or, if
the Common Shares have not been listed on a stock exchange for such
number of trading days, then such lesser number of trading days as
the Common Shares have been so listed, or, if the Common Shares are
not listed on any stock exchange, then in the over-the-counter
market as reported by the Toronto Stock Exchange (or such other
stock exchange or as quoted by the most commonly quoted or carried
source of quotations for Common Shares traded in the
over-the-counter market), provided that if, on any such trading
day, there are no such reported or quoted prices, the average of
the closing bid and asked prices per share for board lots of the
Common Shares reported by the Relevant Stock Exchange (or such
other stock exchange or as quoted by the most commonly quoted or
carried source of quotations for shares traded in the
over-the-counter market) for such trading day will be utilized in
computing such average, and provided further that if the Common
Shares are not listed on any stock exchange or traded in any
over-the-counter market, then the Current Market Price of the
Common Shares will be determined by the directors of the Borrower,
acting reasonably.
(b)
“Dividend Paid in the Ordinary
Course” means any dividend paid by the Borrower on the
Common Shares in any fiscal year of the Borrower (whether in cash,
securities, property or other assets), provided that the amount of
such dividend paid in cash and the value of such dividend paid
otherwise than in cash (any securities, property or other assets so
distributed as a dividend to be valued at an amount equal to the
fair market value thereof as determined by the directors at the
times such dividend is declared), plus the aggregate amount or
value (as so determined) of all other dividends previously paid by
the Borrower on the Common Shares (or on any other shares in the
capital of the Borrower ranking with respect to the payment of
dividends on a parity with the Common Shares) in such fiscal year,
does not exceed the greatest of:
(i)
the amount or value
(as so determined) which results in the amount or value (as so
determined) of dividends per Common Share paid by the Borrower on
the Common Shares (or on any other shares in the capital of the
Borrower ranking with respect to the payment of dividends on a
parity with the Common Shares) during such fiscal year not
exceeding 200% of the amount or value (as so determined) per Common
Share of all dividends paid by the Borrower on the Common Shares
(or on any other shares in the capital of the Borrower ranking with
respect to the payment of dividends on a parity with the Common
Shares) during the fiscal year of the Borrower ended immediately
prior to the commencement of such fiscal year;
(ii)
the amount or value
(as so determined) which results in the amount or value (as so
determined) of dividends per Common Share of all dividends paid by
the Borrower on the Common Shares (or on any other shares in the
capital of the Borrower ranking with respect to the payment of
dividends on a parity with the Common Shares) during such fiscal
year not exceeding 100% of the amount or value (as so determined)
per Common Share of all dividends paid by the Borrower on the
Common Shares (or on any other shares in the capital of the
Borrower ranking with respect to the payment of dividends on a
parity with the Common Shares) during the three successive fiscal
years of the Borrower ended immediately prior to the commencement
of such fiscal year; and
(iii)
150% of the
consolidated net income of the Borrower before extraordinary items
for (but after dividends payable on all shares in the capital of
the Borrower ranking with respect to the payment of dividends prior
to the Common Shares in respect of) the fiscal year of the Borrower
ended immediately prior to the commencement of such fiscal year
(such consolidated net income, extraordinary items and dividends to
be as shown in the audited consolidated financial statements of the
Borrower for such fiscal year or, if there are no audited
consolidated financial statements for such fiscal year, computed in
accordance with generally accepted accounting
principles);
provided that if
any fiscal year which is relevant for purposes of the foregoing
provisions of this definition is less than 365 days any amount or
value determined in respect of such fiscal year pursuant to such
provisions will be adjusted by multiplying such amount or value by
the number obtained by dividing 365 by the number of days in such
fiscal year;
(c)
“subsidiary” has the meaning which
that term had in the Canada Business Corporations Act;
and
(d)
“trading day”, with respect to any
stock exchange or over-the-counter market, means a day on which
shares may be traded through the facilities on such stock exchange
or in such over-the-counter market.
11. Proceedings Prior to any Action
Requiring Adjustment: As a condition precedent to the taking
of any action which would require an adjustment in any of the
conversion rights pursuant to this Debenture, including the number
and classes of shares which are to be received upon the exercise
thereof, the Borrower shall take any corporate action which may be
necessary in order that the Borrower has unissued and reserved in
its authorized capital and may validly and legally issue as fully
paid and non-assessable all the shares which the Lender is entitled
to receive on the full exercise of the conversion rights under this
Debenture in accordance with the provisions hereof.
12. Notice of Adjustment of Subscription
Rights: Immediately upon the occurrence of any event which
requires an adjustment in any of the subscription rights pursuant
to this Debenture, the Borrower shall forthwith give notice to the
Lender of the particulars of such event and the required adjustment
in the subscription rights.
13. Covenants of the Borrower: The
Borrower covenants with the Lender that so long as this Debenture
remains outstanding:
(a)
The Borrower shall
duly and punctually pay or cause to be paid to the Lender the
principal of and the interest accrued on this Debenture on the
dates, at the place, in the moneys, and in the manner set forth in
this Debenture.
(b)
The Borrower shall
pay all reasonable costs, charges and expenses (including legal
fees and disbursements) of or incurred by the Lender in connection
with this Debenture and all ancillary documents including the
ongoing administration hereof (other than normal course reviews and
reports) and the enforcement hereof.
(c)
The Borrower shall
provide immediate notice to the Lender of any event which
constitutes or with the giving of notice or lapse of time or both,
or the satisfaction of any other condition, would constitute an
event of default under this Debenture.
(d)
The Borrower shall
not:
(i)
sell, lease or
otherwise transfer any of its undertaking, property and assets as
an entirety or substantially as an entirety in one or more
transactions, or sell, lease or otherwise dispose of its
undertaking, property and assets as an entirety or substantially as
an entirety in one or more transactions; or
(ii)
amalgamate or merge
with any other corporation or effect any corporate reorganization
if such transaction involves the issue of shares of the
Borrower;
without
the prior written consent of the Lender or as expressly provided
for herein.
(e)
The Borrower shall
not, at any time, without the prior written approval of the Lender,
incur any indebtedness, other than indebtedness evidenced by this
Debenture, for money borrowed by the Borrower or for money borrowed
by others for the payment of which the Borrower is responsible or
liable.
(f)
The Borrower shall
not without the prior written consent of the Lender or except as
contemplated herein, permit a reorganization, amalgamation, merger,
acquisition, divestiture or any other corporate event including,
but not limited to, an amendment of the charter documents which
would cause the corporate structure or the shareholdings, whether
legal or beneficial, of the Borrower to be varied from the
corporate structure or shareholdings, whether legal or beneficial,
as it exists as of the date of this Debenture.
DEFAULT
14. Default: Upon the happening of
any one or more of the following events, namely:
(a)
if the Borrower
makes default in payment of the principal and/or interest on this
Debenture when the same becomes due and payable under any provision
hereof;
(b)
if proceedings for
the bankruptcy, receivership, dissolution, liquidation, winding-up,
reorganization or readjustment of debt of the Borrower or for the
suspension of the operations of the Borrower are commenced or
notice of intention in respect thereof is given under any law or
statute of any jurisdiction relating to such matter whether now or
hereafter in effect and such proceedings are not being contested by
the Borrower; and
(c)
if the Borrower is
adjudged or declared bankrupt or insolvent, or makes an assignment
for the benefit of its creditors, or petitions or applies to any
tribunal for the appointment of a receiver or trustee for it or for
any substantial part of its property, or commences any proceedings
relating to it under any reorganization, arrangement, readjustment
of debt, dissolution, liquidation, or other similar law or statute
of any jurisdiction whether now or hereafter in effect, or by any
act or failure to act indicates its consent to, approval of, or
acquiescence in, any such proceeding for it or any substantial part
of its property, or suffers the appointment of any receiver or
trustee,
then in
each and every such event the principal of and interest on this
Debenture and all other moneys outstanding hereunder shall
forthwith become immediately due and payable, anything herein to
the contrary notwithstanding, and the Borrower shall forthwith pay
to the Lender the principal of and accrued and unpaid interest,
together with interest at the rate borne by this Debenture on such
principal, interest and such other moneys from the date of the said
declaration until payment is received by the Lender.
GENERAL
15. Further Assurances: Whether
before or after the happening of an event of default, the Borrower
shall, at its own expense do, make, execute or deliver, or cause to
be done, made, executed or delivered, all such further acts,
things, agreements, documents and instruments in connection with
this Debenture as the Lender may request from time to time for the
purpose of giving effect to the terms of this Debenture, all
immediately upon the request of the Lender.
16. Waiver of Default: The Lender
may by written notice to the Borrower waive any default of the
Borrower on such terms and conditions as the Lender may determine,
but no such waiver shall be taken to affect any subsequent default
or the rights resulting therefrom.
17. Expenses: The Borrower shall
pay to the Lender forthwith upon demand all reasonable
out-of-pocket costs, charges and expenses (including legal fees on
a solicitor-client basis) incurred by the Lender in connection with
the recovery or enforcement of payment of any of the moneys owing
hereunder at the rate hereinbefore specified calculated from the
date of incurring such costs, charges and expenses.
18. Severability: If any term,
covenant, obligation or agreement contained in this Debenture, or
the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Debenture or the application of such term, covenant, obligation or
agreement to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant, obligation or agreement herein contained
shall be separately valid and enforceable to the fullest extent
permitted by law.
19. Notices: Any notice or other
communication which may be or is required to be given or made
pursuant to this Debenture shall, unless otherwise expressly
provided herein, be in writing and shall be deemed to have been
sufficiently and effectively given if signed by or on behalf of the
party giving notice and delivered or sent by registered mail,
postage prepaid, to the party for which it is intended at its
address as follows:
(a)
if to the Borrower,
at:
30
Worcester Road,
Toronto,
Ontario
M9W
5X2
Facsimile Number:
(416) 798-3007
Attention: Chief
Financial Officer
(b)
if to the Lender,
at:
30
Worcester Road,
Toronto,
Ontario
M9W
5X2
Facsimile Number:
(416) 798-3007
Any
notice or communication which may or is required to be given or
made shall be made or given as herein provided or to such other
address or in care of such other officer as a party may from time
to time advise to the other parties hereto by notice in writing as
aforesaid. Any notice or communication given by mail shall be
deemed to have been received on the fifth business day following
the date of mailing unless delivery by mail is likely to be delayed
by strike or slowdown of postal workers, in which event it shall be
delivered by hand or transmitted by telecopier. Any notice which is
delivered by hand shall be deemed to have been received on the date
of such delivery if such date is a business day and such delivery
was made during normal business hours; otherwise it shall be deemed
to have been received on the business day next following such date
of delivery. Any notice which is delivered by telecopier shall be
deemed to have been received on the date of transmission if such
date is a business day and such transmission was made during normal
business hours; otherwise it shall be deemed to have been received
on the business day next following such date of
transmission.
20. Assignment: The Borrower and
the Lender shall not assign all or any part of their rights,
benefits or obligations under this Debenture without the prior
written consent of the other party, acting reasonably.
21. Entire Agreement: This
Debenture constitutes the entire agreement between the parties
pertaining to the subject matter described herein and therein.
There are no warranties, conditions or representations and there
are no agreements in connection with such subject matter except as
specifically set forth or referred to in this
Debenture.
22. Law Governing: This Debenture
shall be governed in all respects by the law of the Province of
Ontario and the laws of Canada applicable therein and shall be
treated in all respects as an Ontario contract.
23. Amendment and Waiver: No
amendment or waiver of any provision of this Debenture or consent
to any departure by the Borrower from any provision hereof or
thereof is effective unless it is in writing and signed by the
Lender. Such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it
is given.
24. Currency of Payment: The
principal, interest and other moneys payable hereunder shall be
paid in lawful money of Canada.
25. Successors: This Debenture and
all its provisions shall enure to the benefit of the Lender and her
heirs, executors and assigns, and shall be binding upon the
Borrower and its successors and assigns. The parties hereto
irrevocably submit and attorn to the non-exclusive jurisdiction of
the courts of the Province of Ontario for all matters arising out
of or in connection with this Debenture.
IN WITNESS WHEREOF the Borrower has duly executed this
Debenture as of the date first above written.
INTELLIPHARMACEUTICS INTERNATIONAL INC.
Per: /s/ Andrew Patient
Title:
Chief Financial Officer
Per:
Title: