terms and conditions aira-w2 eng · such allotment shall be disregarded. the names of shareholders...
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Terms of Rights and Duties of the Issuer and Holders of Warrants for “Warrant to purchase the newly ordinary shares of
AIRA Capital Public Company Limited, No. 2 (AIRA‐W2)”
Warrants to purchase the newly ordinary shares of AIRA Capital Public Company Limited, No. 2 (AIRA‐W2), (the “Warrants”) issued by AIRA Capital Public Company Limited (“Warrants Issuer”) or (“the Company”) as approved by the Extraordinary General Meeting of Shareholders No. 1/2015, held on 19 June 2015. The Holders of warrants shall be entitled as defined in the Terms and Conditions. The Company and the Holders of warrants shall be bound by terms and conditions in all respects. Holders of warrants shall be deemed to acknowledge and understand the requirements. The Company shall arrange to have a copy of the Warrant Covenants at the Company’s head office so that the Warrant Holders can review during the Company’s business hours.
1. Definition
Below is a list of important words and phrases used in this Warrant Covenants with respective meanings.
(1) “Warrant Covenants” This Warrant Covenants with regard to the rights and duties of the Issuer and Holders of Warrant of AIRA Capital Public Company Limited, No. 2, including further amendment.
(2) “Warrant” Warrants to purchase the newly ordinary shares of AIRA Capital Public Company Limited, No. 2 offering to the existing shareholders who have subscribed for the newly issued ordinary shares in proportion to their respective shareholding (Right Offering), without any cost, at a ratio of 2 newly issued ordinary shares to 1 unit of warrant, totaling to the amount not exceeding 781,886,972 units. Any remaining warrant unit resulting from such allotment shall be disregarded. The names of shareholders who are entitled to receive Warrant shall be recorded on 29 June 2015, and to gather the names of shareholders under section 225 of the Securities and Exchange Act B.E. 2535 (1992) (including further amendment) by closing the share register book and suspension of share transfer on 30 June 2015.
(3) “Certificate” The Certificate representing warrants issued by Thailand Securities Depository Company Limited.
(4) “Warrant Issuer” AIRA Capital Public Company Limited (5) “Warrant Holder” Legal Holder of Warrant Certificate and/or its
replacement Certificate (6) “Business Day” The date on which commercial banks in Bangkok
operate, which cannot be on Saturday or Sunday or
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any bank holidays as announced by the Bank of Thailand.
(7) “SEC” The Securities and Exchange Commission. (8) “SET” The Stock Exchange of Thailand
2. Details of Warrant The Company intends to issue and offer Warrant to purchase the Company’s newly
issued ordinary shares at the amount of 781,886,972 units to the existing shareholders who have subscribed for the newly issued ordinary shares in proportion to their respective shareholding (Right Offering) at a ratio of 2 newly issued ordinary shares to 1 unit of warrant, totaling to the amount not exceeding 781,886,972 units. Any remaining warrant unit resulting from such allotment shall be disregarded. The names of shareholders who shall be entitled to receive Warrant shall be recorded on 29 June 2015, and to gather the names of shareholders under section 225 of the Securities and Exchange Act B.E. 2535 (1992) (including further amendment) by closing the shareholder register and suspension of share transfer on 30 June 2015.
The details of Warrant are as follows: Type of Warrant : Warrant to purchase the newly ordinary shares of AIRA
Capital Public Company Limited No. 2 (AIRA‐W2) Category of Warrants : Named and transferable warrant Issuance Date : 3 August 2015 Term of Warrants : 4 years from the Issuance Date Amount of Warrant : Not exceeding 781,886,972 units Offering Price : THB 0.00 (Zero Baht)Offering and Allocation : To allocate to the existing shareholders, who have
subscribed for the newly issued ordinary shares in proportion to their respective shareholding (Right Offering) without any cost, at a ratio of 2 newly issued ordinary shares to 1 unit of warrant, totaling to the amount not exceeding 781,886,972 units. Any remaining warrant unit resulting from such allotment shall be disregarded. The names of shareholders who shall be entitled to receive Warrant shall be on 29 June 2015, and to gather the names of shareholders under section 225 of the Securities and Exchange Act B.E. 2535 (1992) (including further amendment) by closing the shareholder register and suspension of share transfer on 30 June 2015.
Reserved Shares : 781,886,972 shares representing 14.29% of the Company’s ordinary shares after right offering (1,563,773,944 shares)
Exercise Ratio : 1 unit of warrant per 1 ordinary share (the Exercise Ratio may be adjusted under the condition of rights adjustment)
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Exercise Price : THB 3.50 per share (the Exercise Price may be adjusted under the condition of rights adjustment)
Exercise Period : Warrant Holders shall be able to exercise their rights to purchase Company’s ordinary shares on the last Business Day of October, January, April, and July (the “Exercise Date”). The First Exercise Date shall fall on 30 October 2015 (the “First Exercise Date”) and the last Exercise Date shall fall on 2 August 2019. The warrant shall be 4 years valid on 2 August 2019. In case the last Exercise Date falls on the Company’s holidays, the last Exercise Date shall be moved up to the last business day prior to the last Exercise Date. The Warrant Holders shall notify their intention to exercise their rights within 15 days prior to the final Exercise Date.
Secondary Market for Warrants
: The Company shall arrange for the issued warrants to be listed with SET.
Secondary Market for Newly Issued Ordinary Shares
: The Company shall arrange for the newly issued ordinary shares exercised by the warrants to be listed with SET.
Warrant Registrar : Thailand Securities Depository Company Limited (“TSD”)
3. Exercise Right of Warrants 3.1 Exercise date
Warrant Holders shall be able to exercise their rights to purchase Company’s ordinary shares on the last Business Day of October, January, April, and July (the Exercise Date). The first Exercise Date shall fall on 30 October 2015 (the “First Exercise Date”) and the last Exercise Date shall fall on 2 August 2019 in the same manner that the Warrant shall be expired on 2 August 2019. In case the last Exercise Date falls on the Company’s holidays, the last Exercise Date shall be moved up to the last business day prior to the last Exercise Date. The Warrant Holders shall notify their intention to exercise their rights within 15 days prior to the final Exercise Date. Therefore, there shall be 12 exercise periods for this warrant as shown in the table below.
No. Exercise Date No. Exercise Date
1 Friday, 30 October 2015 9 Tuesday, 31 October 2017
2 Friday, 29 January 2016 10 Wednesday, 31 January 2018
3 Friday, 29 April 2016 11 Monday, 30 April 2018
4 Friday, 29 July 2016 12 Tuesday, 31 July 2018
5 Monday, 31 October 2016 13 Wednesday, 31 October 2018
6 Tuesday, 31 January 2017 14 Thursday, 31 January 2019
7 Friday, 28 April 2017 15 Tuesday, 30 April 2019
8 Monday, 31 July 2017 16 Friday, 2 August 2019
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3.2 Notification Period for the Exercise of Rights Any Warrant Holders who wish to exercise their rights to purchase ordinary shares
of the Company shall give a notification stating their intention between Mondays to Fridays during 09.00 to 15.30 hrs within 5 Business Days prior to each Exercise Date (“Notification Period”). In the case where the Notification Period falls on the date on which Banks and/or the Registrar are closed for business, the Notification Period shall be moved up to brought forward to the date prior to the notification date, except for the last Exercise Date, whereby the Warrant Holders are required to notify their intention to exercise their rights within 15 days prior to the last Exercise Date (“Last Notification Period”).
The Company shall notify the Warrant Holders regarding the Exercise Period via the SCP system at least 5 days prior to each Notification Period. For the last Exercise Date, the Company shall notify the Warrant Holders regarding the closure of the warrant registration book 21 days prior to the last Exercise Date and the Stock Exchange of Thailand shall post the sign “SP” for 2 days prior to the last warrant book closing date.
3.3 The Warrants Registrar
Thailand Securities Depository Co., Ltd. 7th Floor, 62 Stock Exchange of Thailand Building Ratchadapisek Road, Klongtoey, Bangkok 10110, Thailand Tel: 0‐2229‐2800 Fax: 0‐2359‐1259 Website: www.tsd.co.th
The Warrant Registrar is responsible for closing the warrant registration book in which it contains information on full name, nationality, address of the Warrant Holders and other information as determined by the Warrant Registrar. In case of any inconsistency of information, the information on the warrant register book shall prevail. Therefore, the Warrant Holders have an obligation to inform any changes or corrections in the records of the registration of warrants to the Warrant Registrar directly. The Company reserves the right to change the Warrant Registrar and notify the Warrant Holders via SET’s communication system as well as notify SEC within 15 days.
3.4 Contact Place for the Exercise
AIRA Capital Public Company Limited 319 Chamchuri Square Building, 12th Floor, Phayathai Road, Pathumwan, Bangkok 10330, Thailand Tel 0‐2684‐8991‐5 Fax 0‐2684‐8980
3.5 Exercise Procedures 3.5.1 Any Warrant Holder who wishes to exercise their rights to purchase the ordinary
shares must comply with the conditions prescribed in the Exercise Notice and submit the following documents to the Contact Place with the following procedures:
(a) The Exercise Form must be filled out clearly, correctly and duly signed by the Warrant Holder. The Warrant Holders may obtain the Exercise Form at the Contact Place during
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the Exercise Period or on the Last Exercise Period or download the Exercise Form at the website: www.airacapital.co.th
(b) Warrant certificate or replacement certificate as prescribed by the Stock Exchange of Thailand in accordance with the prescribed rights and amount in the Exercise Notice; in the case where the warrant right is in the form of certificate, the Warrant Holder may use the warrant certificates to exercise their rights to purchase ordinary shares immediately. In the case where the Warrants are in the scripless system, Warrant Holder who wishes to exercise their rights must notify and fill in the application to withdraw the warrant certificates or the replacement certificates as prescribed by the Stock Exchange of Thailand and submit the aforesaid to the securities companies acting as their broker. Such broker shall notify the Warrant Registrar to withdraw the warrant certificates or the replacement certificates to use as supplementary evidence to exercise their rights to purchase ordinary shares of the Company.
(c) The Warrant Holder shall pay for the cost of the shares at once for the whole amount specified in the notification form by way of cash, transfer payment, cheque, draft, cashier cheque (or bank draft), that is able to be collected in Bangkok area within 2 business days from the relevant Exercise Date, and be crossed and payable to “AIRA Capital’s increased shares subscription account”. The aforesaid cheque, draft or cashier cheque shall have the Warrant Holder’s name, address, and contact number on the backside. For transfer payment, it shall be made into the account name “AIRA Capital’s increased shares subscription account”, account number 220‐0‐58499‐9, Savings account at Bangkok Bank, Vanich Building branch. The Pay‐in Slip must be sent to the Company with the Warrant Holder’s name, address, and contact number on the backside. The Exercised Warrant shall be considered complete only after the Company acknowledges receipt of full payment. In case of failure to collect payment for any reason, for which the Warrant Holder shall be responsible, it shall be deemed that the Warrant Holder intends to cancel the transaction and the Company agrees with such cancellation.
The Company shall return the Warrant certificate or replacement certificate along with the uncleared cheque to the Warrant Holder by registered mail within 14 days from each exercise date. There shall be no payment of interest in any case. However, the Warrant Holder is still entitled to exercise their rights in the next time, except in the case of the last Exercise Period that shall be regarded as no longer entitled to purchase the newly issued ordinary shares according to the Warrant certificate or replacement certificate.
(d) Verification of Identification (1) Thai Individual: Certified true copy of his/her Identification Card (2) Foreign Individual: Certified true copy of his/her Passport. (3) Thai Juristic Person: Copy of the affidavit of juristic person issued by the
Ministry of Commerce or authorized department not more than 6 months prior to the Exercise Date, certified by authorized director with the Company’s Seal (If applicable), together with certified documents of the authorized directors according to (1) or (2) (whichever applicable).
(4) Foreign Juristic Person: Copy of company’s register document, certified by Notary Public or relevant government authorization not more than 6 months, together with certified true copy of documents of the authorized director according to (1) or (2) (whichever applicable).
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(e) Number of warrants which are being exercised must be in full quantity at the exercise of right ratio of one unit of warrant to one ordinary share, except in case of right adjustment.
(f) Warrant Holders shall exercise their rights to purchase ordinary shares not less than 100 shares or in multiple of 100 shares except in the case where there are any fractions of warrants or in the case of the last Exercise Period. Nevertheless, if the Warrant Holders have rights to purchase equal to or less than 100 ordinary shares, they shall exercise their rights to purchase ordinary shares all at once.
3.5.2 Additional Conditions for non‐Thai Warrant Holders to exercise right (a) Non‐Thai Warrant Holders who are eligible to exercise rights to purchase shares
in whole or in part, are subject to the restriction regarding the foreign shareholding limit as stipulated in the Articles and Association of the Company.
(b) If the number of warrant certificates and/or the replacement certificates as at the Exercise Date exceeds the number of shares for non‐Thai nationality without being in breach of the restriction of share transfer regarding the shareholding right of non‐Thai nationality, the Company shall allot shares to non‐Thai Warrant Holders who have exercised their rights with duly completed documents accordingly in respective order as identified in Procedures for Warrant Exercise.
(c) The Company shall return the unexercised warrant certificates or the replacement certificates with the remaining funds to the non‐Thai Warrant Holder by registered mail within 14 business days from the relevant Exercise Date without any interest.
(d) If the non‐Thai Warrant Holders are unable to exercise their rights as a result of restriction on foreign shareholding limit at the last exercise date, those shall be treated as expired. The non‐Thai Warrant Holders shall have no right to claim against the Company for any compensation and the Company shall not be held responsible for any damages incurred.
3.5.3 The Warrant Holders are responsible for any payment of stamp duties and other taxes (if any) according to the revenue code, regulations, or other law regulating the exercise of warrants.
3.5.4 The number of ordinary shares issued upon the exercise of Warrants shall be calculated by the payment made by the Warrant Holder as stated above divided by the prevailing Exercise Price. The Company shall then issue ordinary shares in full quantity, which shall not be more than the number of warrant certificates or replacement certificates multiplied by the Exercise Ratio. In case of any adjustment of the Exercise Price and/or the Exercise Ratio that incur fraction of shares, the Company shall not include such fractions to the calculation and shall return any funds resulting from overpayment to the Warrant Holder via registered mail within 14 Business Days from the relevant Exercise Date, without any interest.
3.5.5 If the Company does not receive the warrant certificates or payment in full as specified in the Exercise Notice and/or the Company determines that the Exercise Notice has been inaccurately or incompletely filled in by the Warrant Holder, or the stamp duty is not affixed in accordance with the relevant regulations or laws, the Warrant Holder shall rectify such errors within the relevant Exercise Date, otherwise the Company shall deem that the Exercise Notice has been invalid without any right having been exercised and shall return the payment received with no interest in whichever cases together with the warrant certificates or replacement certificates to the Warrant Holder by registered mail within 14 Business Days from
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the Exercise Date. Nevertheless, the unexercised warrant certificates or replacement certificates shall be valid until the last Exercise Period.
3.5.6 In the case where the Holders of warrant certificates or replacement certificates and does not pay the Exercise Price in full, the Company shall have the absolute right to do any of the following:
(a) to deem that the Exercise Notice is cancelled without any right having been exercised; or
(b) to deem that the number of ordinary shares subscribed is equal to the number of ordinary shares eligible in accordance with the actual payment that the Company received given the prevailing Exercise Price; or
(c) to ask the Holder of warrant certificates or replacement certificates to pay the remaining balance of the amount he/she wishes to exercise within the prevailing Exercise Period. If the Company does not receive payment within such period, it shall be deemed that the Exercise Notice has been expired without any right having been exercised, except in the case of the Last Exercise Period that the Company shall have an alternative right to proceed on (b) that is the Company deems that the number of ordinary shares subscribed is equal to the number of ordinary shares eligible in accordance to the actual payment the Company received given the prevailing Exercise Price.
In case of (a) and (c), the Company shall return overpayment of the Exercise Price received by the Company together with the warrant certificates or the replacement certificates by registered mail within 14 Business Days after the Exercise Date with no interest. In case of (b), the Company shall deliver the warrant certificates or the replacement certificates reflecting the remaining units as the Company deems that the rights are partly exercised to such Holder of warrant certificates or replacement certificates with no interest by registered mail within 14 Business Days after the Exercise Date. However, the unexercised Warrants shall be valid until the last Exercise Date.
3.5.7 The exercise of warrants to purchase ordinary shares that have fully complied with all conditions governing their exercise cannot be withdrawn, except with the consent in writing from the Company, provided that the Warrant Holders who wish to exercise their rights to purchase the ordinary shares have complied with the terms of the notification and delivered the exercise form.
3.5.8 In the case where the number of Warrant Holders who have submitted warrant certificates exceeds the number of Warrant Holders who have given Exercise Notice, the Company shall send a new warrant certificate to such Warrant Holder whose warrant are in the scrip system, corresponding to the decreased number of Warrants, to the Warrant Holder by registered mail within 14 Business Days of the relevant Exercise Date and shall cancel the previous warrant certificate. For scripless system, the Company shall deliver the mentioned warrant to the TSD within 14 Business Days from the Exercise Date, according to the methods notified in the exercise form.
3.5.9 In the event that the Company has to send warrant certificates or replacement certificates, as well as to return the overpayment resulting from the exercise of rights to the Warrant Holder, the Company shall send to such Warrant Holder with the names and address as specified in the Exercise Notice via registered mail. The Company shall not be responsible for any damages or loss which may occur during the sending process. However, the Warrant
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Holder may specify in the Exercise Notice in the event that he/she wishes to obtain the certificates or collect payment by himself/herself.
3.5.10 The Company shall notify TSD, the Registrar for the Company, on names of the Holders of the newly issued ordinary shares who have exercised their rights of the Warrants, and the Company shall register such names as shareholders of the Company with the Ministry of Commerce and record such names in the Company’s register book within 14 days from each Exercise Date.
3.5.11 As for the issuance and delivery of the newly issued ordinary shares, the Warrant Holders may choose one of the following alternatives in order to acquire newly issued ordinary shares:
(a) In the case where the Warrant Holder wishes to deposit the ordinary shares in a securities company’s account with which the Warrant Holder has a trading account, the Warrant Holder must specify the name of the Securities Company, broker number and trading account number of the Warrant Holder in the exercise form. The Company shall deliver the shares to the given trading account within 7 Business Days after each Exercise Date.
(b) In the case where the Warrant Holders intend to acquire shares in the form of share certificates issued in their own names for the number of warrants that have been exercised, the Thailand Securities Depository, on behalf of the Company, shall proceed to deliver the share certificates equal to the number of warrants exercised to the Warrant Holders via registered mail with the addresses provided in the Exercise Notice within 14 Business Days from the relevant Exercise Date. In this case, the Warrant Holders who intend to exercise their right to purchase ordinary shares shall not be able to sell their ordinary shares through SET until they have received the share certificates.
(c) In the case where the Warrant Holders wishes to use the services of TSD by depositing the ordinary shares in the account of TSD, members number 600. In this case, the Company shall proceed to deposit the ordinary shares as requested by the Warrant Holder with TSD and TSD shall record the number of ordinary shares as have been allocated to the account of TSD, and shall issue evidence of the deposit to the Warrant Holders of such allocated shares within 7 Business Days from the last day of each Exercise Date.
In case the Warrant Holders choose the alternative (a), the name of the Warrant Holder as appeared on the exercise form must be the same as the one appeared on the trading account to which the Warrant Holder wishes to deposit, otherwise, the Company reserves the right to send the share certificates to the Warrant Holders under the alternative (b) instead.
3.5.12 When the Exercise Period has passed and the Warrant Holder does not exercised the rights of the Warrant, the unexercised warrants shall be automatically expired and cannot be used for exercise any further.
3.5.13 There is no condition in these warrants for the Company to call for the Warrant Holders to exercise their rights prior to the specified period.
4. Conditions on the Adjustment of Rights
The Company may adjust the Exercise Price and the Exercise Ratio throughout the Exercise period of the Warrant given that one the following circumstances occur:
(a) When the Company adjusts the par value of the ordinary shares as a result of merger or division of the Company’s ordinary shares.
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Such adjustment shall be effective immediately from the date of the adjustment of the par value of the Company’s ordinary shares, so that the Warrant Holder shall receive the ordinary shares in the amount according to the formula calculation and the type of share after the adjustment of the par value.
1. Exercise Price shall be adjusted according to the following formula:
Price 1 = Price 0 x Par 1 Par 0
2. Exercise Ratio shall be adjusted according to the following formula: Ratio 1 = Ratio 0 x Par 0
Par 1
Whereby Price 1 = New exercise price after the adjustment Price 0 = Previous exercise price prior to the adjustment Ratio 1 = New exercise ratio after the adjustment Ratio 0 = Previous exercise ratio prior to the adjustment Par 1 = Par value of ordinary share after the adjustment Par 0 = Par value of ordinary share before the adjustment
(b) When the Company offers newly issued ordinary shares to the existing shareholders and/or public and/or specific individuals (private placement) at the average price lower than 90 percent of “the market price of the Company’s ordinary shares”, the adjustment of the Exercise Price and Exercise Ratio shall take effect immediately from the first day that the purchasers of the ordinary shares do not have the rights to subscribe for newly issued ordinary shares (the first day that SET posts the sign XR). In the case that it is an offer to the existing shareholders (Right Issue) and/or to the general public on the first day of the offering and/or to specific individuals, in this case, it is required to compare the average selling price of the newly issued ordinary share by computing the total amount of funds received by the Company from selling the shares, deducted by expenses arising from the selling of these shares and divided by the number of shares issued.
However, if the new shares offered have more than one selling price under the condition of joint subscription, the offered price shall be averaged and the number of newly issued shares shall be used to calculate the average price of newly issued shares. In the case where the offering has no condition of joint subscription, the number of shares and the selling price below 90% of the market price of the Company’s ordinary shares shall be used to calculate the adjustment. “The market price of company’s ordinary shares” is determined to be equivalent to the weighted average market price per share of the Company’s ordinary shares, whereby the total trading value of the Company’s ordinary shares are the value of total ordinary shares offered, divided by the number of the Company’s ordinary shares that were trading for 5 consecutive working days (the day on which the stock market is open for trading). The date used for the calculation shall be subject to the following scenario:
The first day that the purchasers of the ordinary share do not obtain the rights to subscribe any newly issued shares offering to the existing shareholders and/or the first day of general public offering and/or private placement offering.
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1. Exercise Price shall be adjusted according to the following formula:
Price 1 = Price 0 x [(A x MP) + BX] [MP (A + B)]
2. Exercise Ratio shall be adjusted by the following formula: Ratio 1 = Ratio 0 x [MP (A + B)]
[(A x MP) + BX] Whereby Price 1 = New exercise price after the Adjustment Price 0 = Previous exercise price prior to the Adjustment Ratio 1 = New exercise ratio after the Adjustment Ratio 0 = Previous exercise ratio prior to the Adjustment MP = Market price of ordinary shares A = Number of paid‐up ordinary shares on the day before
closing book date for the subscription of new ordinary shares and/or before the first day of the offering to general public and/or specific individuals (Private Placement)
B = Number of newly issued ordinary shares offered to the existing shareholders and/or the general public and/or the specific individuals
BX = The total proceeds after deducting selling and underwriting fee of newly issued ordinary shares including sell offering to the existing shareholders and/or the general public
(c) When the Company offers any newly issued securities, which can be converted
to the Company’s ordinary shares or can be exercised to purchase ordinary shares, to the existing shareholders and/or the general public and/or to the private placement, e.g. convertible debentures, warrants, where the average price per share of the newly issued ordinary shares to accommodate those rights is less than 90 percent of “the market price of the Company’ ordinary shares”.
The adjustment in exercise price and exercise ratio shall be in effect immediately from the first day that the purchasers of the ordinary shares do not have the rights to subscribe for any newly issued securities, which provide the Holders the rights to convert or exchange for ordinary shares. (The first day that SET posts the sign XW). In case that it is an offering to the existing shareholders (Right Issue) and/or the first day of general public offering of any securities that provide the Holders the rights to convert or exchange for ordinary shares and/or specific individuals (Private Placement). The average price of newly issued ordinary shares shall be calculated from the total amount of receivables by the Company deriving from the securities offering, deducted with the selling fee and underwriting fee or the issued securities, plus the total amount of receivables from the rights to purchase ordinary shares, divided by total number of newly issued shares to accommodate those rights, whereby the market price used in the calculation shall be the same as stated in (b).
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1. The exercise price shall be changed by the following calculation Price 1 = Price 0 x [(A x MP) + BX]
[MP (A + B)]
2. Exercise ratio shall be changed by the following calculation Ratio 1 = Ratio 0 * [MP (A + B)]
[(A x MP) + BX] Whereby Price 1 = New exercise price after the adjustment
Price 0 = Previous exercise price prior to the adjustment Ratio 1 = New exercise ratio after the adjustment Ratio 0 = Previous exercise ratio prior to the adjustment MP = Market price of ordinary shares A = Number of paid‐up ordinary shares on the day before
closing book date for the subscription of new ordinary shares and/or before the first day of the offering to general public and/or specific individuals (Private Placement)
B = Number of newly issued ordinary shares offered to existing shareholders and/or general public and/or specific individuals
BX = The total proceeds after deducting selling and underwriting fee of newly issued ordinary shares including sell offering to existing shareholders and/or general public and/or private placement
(d) When the Company pays out dividend in full or in part in the form of ordinary
shares to Company’s shareholders. The adjustment of the Exercise price and the Exercise Ratio shall be effective immediately from the first day the purchaser of ordinary shares do not have the rights to obtain stock dividend (the first day SET posts sign XD). The market price to be used in the calculation shall be the same as previously stated in (b).
1. Exercise Price shall be adjusted according to the following calculation:
Price 1 = Price 0 x A (A + B)
2. Exercise Ratio shall be adjusted according to the following calculation: Ratio 1 = Ratio 0 x (A + B)
A Whereby Price 1 = New exercise price after the adjustment
Price 0 = Previous exercise price prior to the adjustment Ratio 1 = New exercise ratio after the adjustment Ratio 0 = Previous exercise ratio prior to the adjustment A = Number of paid‐up ordinary shares on the day before
the closing book date to obtain dividend rights B = Number of newly issued ordinary shares in form of
dividend shares
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(e) When the Company makes dividend payment in the amount exceeding 80
percent of the Company’s net income after tax under separated financial statement in any financial periods during the maturity period of the Warrants.
The method of calculation for the dividend payout to shareholders shall be according to actual dividend paid within each financial year divided by the net operating income after tax as shown in the financial statements of the same financial year. The adjustment in Exercise Price and the Exercise Ratio shall be effective immediately from the first day the purchaser of the ordinary shares does not have the rights to obtain the stock dividend (the first day SET post sign XD). The market price to be used in the calculation shall be the same as previously stated in (b).
1. Exercise Price shall be adjusted according to the following calculation:
Price 1 = Price 0 x [MP – (D – R)] MP
2. Exercise Ratio shall be adjusted according to the following calculation: Ratio = Ratio 0 x MP
[MP – (D – R)]
Whereby Price 1 = New exercise price after the adjustment Price 0 = Previous exercise price prior to the adjustment Ratio 1 = New exercise ratio after the adjustment Ratio 0 = Previous exercise ratio prior to the adjustment MP = Market price of ordinary shares D = Dividend per share paid to shareholders R = Dividend per share when using 80% of net income
after income tax to calculate from total number of shares that receive dividend rights
(f) In the case that there are circumstances that have an effect on the Warrant
Holders that are not described in (a) to (e), the Company and the financial advisor shall jointly consider to adjust the Exercise Price and/or the Exercise Ratio, that shall not cause the Warrant Holders to have less benefits. The resolution of which shall be considered final and the Company shall then inform the Securities and Exchange Commission (SEC) regarding all the details of adjustment within 15 days after the date that such circumstance occurs that has led to the adjustment of rights. In addition, the Company shall then inform the Stock Exchange of Thailand (SET) regarding the adjusted Exercise Price and Exercise Ratio immediately on the date where such circumstance occurs or before or within 9.00 hrs on the date when adjusted Exercise Price and Exercise Period are effective.
(g) The calculations of changes of the exercise price and the exercise ratio according to (a) to (f) are independent from each other, and the adjustments shall be calculated on the timing orders of the occurrences in relation to the market price of the Company’s ordinary shares. For the case of circumstances that occur at the same time, the calculations for changes shall be in the following order; from (a), (e), (d), (b), (c), and (f). For each of the calculation of
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the adjustments, the form of the exercise price shall be computed with 3 decimal digits, and the exercise ratio with 5 decimal digits.
(h) The calculation of any changes in the exercise price and exercise ratio according to (a) to (f) shall not cause any changes resulting in an increase of the Exercise Price and/or a decrease of the Exercise Ratio except in the case of combining the par value of shares. In the case that the number of ordinary shares to be exercised at each exercise of Warrants (5 decimal digit of new exercise ratio after the adjustment) calculated results in a fraction of share, the fraction shall be disregarded. And in case that in the calculation of the Exercise Price after the adjustment (3 decimal digits) multiplied by number of shares intended to be exercised at that exercise period as indicated in the exercise notification, result in a fraction of Baht, the fraction of Baht shall be disregarded.
(i) In the case the adjustment of the Exercise Price causes the new Exercise Price to be below the par value of the Company’s ordinary shares, this lower value shall be used as the new Exercise Price, except in case where the law prohibits the Company to do so, the par value shall be used as the new Exercise Price. For the new Exercise Ratio, the method of calculation shall be in accordance with (a) through (f) which shall remain unchanged.
(j) Regarding the adjustment of the Exercise Price and the Exercise Ratio in accordance with (a) through (f), the Company shall notify the Warrant Holders on the outcome of the adjustment, including the methods of calculation and reasons for the adjustment through SET Portal System within 15 days from the effective date of the adjustment of the Exercise Price and the Exercise Ratio.
(k) The Company shall not extend the term of Warrants and shall not adjust the Exercise Price and the Exercise Ratio, except if there is an adjustment according to the conditions to adjust the Exercise Price and the Exercise Ratio.
(l) The Company may adjust the Exercise Price together with the issuance of new warrants to substitute the adjustment of the Exercise Ratio.
In the case that the Company has to increase the number of shares as Reserved Shares to accommodate the warrant adjustment, the Company must obtain an approval from the shareholders’ meeting prior to submitting such resolution to the SEC in order to be granted to offer the Reserved Shares.
Moreover, the adjustment of exercise price and exercise ration according to clause (a)
to (l) above and amendment of exercise term and condition, the Company will inform the result
of such adjustment by notifying the calculation method and reason for such adjustment to the
SEC office to inform the new exercise price, exercise ratio and terms and conditions including
the brief of reason for such adjustment, calculation method and effective date of such
adjustment within 15 days from the date where the ground of such adjustment or amendment
arises. On this, the Company will notify such adjustment/amendment to the warrant holder via
the electronic media of the SET (SETSMART/ SETPORTAL) immediately or prior to the effective
date of such new exercise ratio or the exercise price.
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5. Compensation in case the Company is unable to provide shares for the exercise of warrants If the Company cannot sufficiently issue the ordinary shares for the exercise of warrant
after the Warrant Holders have duly exercised their right in each notification period, the Company shall compensate the Warrant Holders who have notified their intention to exercise their rights. The calculation for compensation shall be computed as follows.
Compensation per 1 warrant = B x (MP ‐ Price 1) Whereby B = The number of shares which cannot be issued and/or
increased in accordance with the increasing exercise ratio per 1 unit.
MP = Total trading value of the Company’s ordinary shares divided by total number of the Company’s ordinary shares being traded in SET on each exercise date.
Price 1 = Exercise price or adjusted exercise price as specified in the condition for an adjustment.
Such compensation as above mentioned shall be made by crossed cheque payable to “account payee only” and sent by registered mail within 14 days from the exercise date to the warrants Holder at the address stated in the exercise form.
In addition, for foreign Warrant Holders who are not able to exercise their rights to convert warrants due to the limitation of foreign shareholding limits as stated in the Articles of Association of the Company, the foreign Warrant Holders have no rights to claim against the Company and no compensation shall be made for such subscription. However, the warrants shall still be valid until the end of the final exercise period. If the last exercise date is not exercisable by the foreign Warrant Holders due to the limitation of the shares held by foreigners at that time exceeds the amount specified in the Articles of Association of the Company, the warrants shall be deemed to be expired, and the foreign Holders of such warrants have no right to claim any damages against the Company and the Company shall not compensate for any damages that may occur.
6. Status of Warrant Holders during the Notification Period During the period between the Warrant Holders having completed their notification of their
intention to exercise the warrants until the day before the Registrar records the Warrant Holders as shareholders in the shareholder register book as well as having been registered with the Ministry of Commerce, the Company shall regard the aforementioned Warrant Holders in the same status as other Warrant Holders who have not declared their intention to exercise their warrants. From the date on which the registrar records the names of the Warrant Holders, who have completed their notification of intention to exercise the warrants as shareholders in the shareholder register book which the Company has registered with the Ministry of Commerce, the Company shall regard the aforementioned Warrant Holders in the same status as shareholders of the Company.
In the case where there is an adjustment of the Exercise Price and/or Exercise Ratio made during the period in which the Company has not yet registered the new shares (resulting from the warrants being exercised) with the Ministry of commerce, the rights of Warrant Holders who had already exercised their rights shall be adjusted retrospectively by the Company proceeding to issue additional ordinary shares to the Warrant Holders as soon as possible
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according to the entitlement of the Warrant Holders. If the adjusted price is effective, the additional new ordinary shares may be received later than the new ordinary shares that have been received earlier, but not later than 15 days from the date of adjustment.
7. Newly Issued Ordinary Shares resulting from the Exercise of Warrants
The newly issued ordinary shares resulting from the exercise of warrant shall have the same status in all respect as the Company’s ordinary shares previously issued and fully paid up. Hence, from the date the shareholders have been registered in the shareholder register book of the Company which the Ministry of Commence has duly registered and if the Company announces a dividend or any benefit to the shareholders before the Company registers the Warrant Holders as shareholders in the register book of the Company at the Ministry of Commerce, such Warrant Holders shall not be entitled to receive any dividend payment or any other benefits.
8. Subscription, Offering and Allocation
8.1 Offering Method Warrant offering is not through the securities broker and not under the underwriter. 8.2 Allocation Method This Warrant shall be allotted to any existing shareholder who has exercised the right to
subscribe for the ordinary shares at the ratio of 2 newly issued ordinary shares per 1 unit of warrant at no cost. Therefore, there is no subscription payment for the Warrant.
8.3 Delivery of Warrant Certificates The Company shall appoint TSD to be the Warrant Registrar and shall deliver the
warrants certificate to the existing shareholders in the following manners: (a) In the case that the existing shareholders have no trading accounts with the
securities company or TSD, the Company shall issue and deliver the Warrant certificate to the address as stated in the shareholder register book of the Company. The delivery shall be made to the allotted recipients within 14 (fourteen) days from the issuing date. The Warrant Holders can buy and sell their warrants through the SET immediately after the SET has granted permission for the warrants to be traded on the SET.
(b) In the case that the existing shareholders already have trading accounts with the Securities Company or TSD, the Company shall deliver the warrants by transferring into the account in the securities company under the scripless system through TSD. In this case, the recipient of the allocated warrants can purchase the first ordinary shares on time and sell the warrants in the stock market immediately as soon as the SET grant an approval for the warrants to be traded in the stock market.
8.4 Details of Reserved Shares for the Exercise of Warrants
Number of Reserved Share 781,886,972 shares Par Value per Share 0.25 THB Exercise Price per Share 2.00 THB
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Total value of shares from 781,886,972 THB the exercise of warrants Percentage of reserved shares 14.29% of the total paid‐up capital after
right offering to the existing shareholders (1,563,773,944 Shares) (at the par value of THB 0.25 per share)
Other terms and conditions ‐ none ‐
8.5 Secondary Market for Warrants and Secondary Market for Newly Issued Ordinary Shares Resulting from the Exercise
8.5.1 Secondary Market for Warrants The Company shall register the allotted warrants with the SET under the terms and
conditions and compliance with the notifications and related regulations within 45 days after the completion of the warrant allotment.
8.5.2 Secondary Market for Newly Issued Ordinary Shares Resulting from the Exercise The Company shall submit a request for approval to have the ordinary shares resulting
from the exercise of warrants registered with the SET within 30 (thirty) days from the last day of each Exercise Period. This is to allow the newly issued ordinary shares from the exercised warrant to be traded on the SET in the same manner as the existing shares of the Company.
8.6 Issuance and Delivery of Newly Issued Ordinary Share Certificates The newly issued ordinary shares shall be issued in the name of Warrant Holder and
delivered the share certificate to the Warrant Holder at the address as stated in the subscription form by registered mail within 45 days from the date of each exercise date. In any case, the Warrant Holder can choose to use the service in the scripless system of TSD, which shall not affect the rights of the Warrant Holders.
9. Transfer of Warrant
9.1 Transfer of Warrant that is not deposited with TSD shall comply with the following: (1) Transfer of Warrant from the Transferor to the Transferee The transfer of the warrant is complete when the transferor of the Warrant Holder as
named in the warrant Holder register book registering as the owner of the warrants, under the desired number of warrants to be transferred or as the last warrant transferee receiving the rights, according to the endorsement of transfer on the back of the warrant certificate duly completed in the relevant names (depending on the circumstances) and the warrant delivered to the transferee with duly signed signatory on the back of the warrant certificate.
(2) Result of warrant transfer between the Transferee and the Issuer The transfer of the warrants can be claimed to the Issuer of the warrants only when the
Warrant Registrar received the request for transfer of warrant, together with the warrant certificate that the transferee has duly signed on the back of the warrant certificate.
(3) Result of the transfer of warrant between the Transferee and the Third party The transfer of the warrants can be claimed to the third party only when the Warrant
Registrar has registered the transfer of warrant in the register book of warrant holders. (4) Registration of Warrant Transfer before the Warrant Registrar
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The process shall be done at the head office of the Registrar during the office hours and working day of the Registrar and shall be completed under the procedures as required by the Registrar. The registrar has the right to refuse to register a transfer request if the Registrar is of the view that the transfer of warrants is not in accordance with the law. The applicant shall submit the warrant certificate duly signed on the back of the warrant certificate according to clause 9.1(1), together with the required documents demonstrating that the transfer process is fully in compliance. The Registrar shall register the warrant transfer in the warrant holders’ register book within 7 working days from the date on which the Registrar received the warrant transfer application with the warrant certificate and the other required documents.
9.2 Transfer of warrants deposited with the TSD shall be proceeded according to the regulations of SET, TSD and other relevant authorities.
10. Transfer restriction of warrant and new Ordinary Shares arising from exercise of
warrants 10.1 Transfer of warrant certificate The Company has no restriction on the transfer of warrants except during the warrant
book closure period which is 21 days prior to the last Exercise Date and the warrants shall be suspended from trading (posting of SP sign) by the Stock Exchange of Thailand for 3 business days prior to the closing date of Warrants register book or any period which may be determined by the Stock Exchange of Thailand. In case the closing date of the register book falls on the holidays prescribed by SET, the closing date shall be postponed till the next business day. In case of the Warrant Holders’ meeting, the Company shall close the register book to determine the right to join the meeting and vote not longer than 21 days prior to the Warrant Holders’ meeting date.
10.2 Transfer of new ordinary shares arising from the exercise of warrants According to the Company’s Articles of Association, the Shares of the Company are
freely transferable without restriction except when such transfers may cause the holding of shares by non‐Thai shareholders to exceed the proportion stipulated in the Company’s Article of Association. In any case, the Company reserves the right to amend its Article of Association relating to the share transfer after the issuance of the Warrants and deems that such amendment shall apply to the conditions governing the exercise of the Warrant starting from the date of registration by the Ministry of Commerce onwards.
11. Amendment of the Terms and Conditions of the Warrants
11.1 Minor amendment or amendment required by law Any amendment to the Terms and conditions which have no significant impact to the
warrant Holders, or matters concerning the benefits of the warrant Holders, or any amendment that does not deprive the rights of Warrant Holders, or any amendment to be in compliance with the relevant law, rules, regulations, or notifications of SEC and other regulators, shall be made by a resolution of the meeting of the Board of Directors.
11.2 Significant amendments Any amendment to the terms and conditions above other than as stated in clause 11.1
must first obtain the consent from the Board of Directors’s resolution on behalf of the Company and the Warrant Holders’ meeting as stated on 12.8 or 12.10 on the case by case basis.
11.3 Limitation of the amendments
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The amendment to the terms and conditions above must not be any amendment in respect of extension of the expiry date, Exercise Ratio, Exercise Price, including any amendment which is in conflict with the relevant law, rules, regulations, or notifications of SEC or SET which are currently in effect and any future amendments after the date of issuance and offering of warrants, unless the Company receives exemption.
11.4 Process of the Amendment. The Company shall amend the terms and conditions according to the resolution of the
Board of Director’s meeting or the Warrant Holders’ meeting within 3 days from the date of the meeting. The Company shall notify the amendment of the Terms in written to SEC and SET within 15 days after the date of the amendment. The Company shall notify the amendment to the Warrant Holder via the SET’s electronic system on the same date that the notification made to SEC and SET.
12. Warrant Holders’ Meeting
12.1 Call for Warrant Holders’ Meeting The Company shall convene a Warrant Holders’ Meeting to seek for approval to proceed
with any transactions within 30 (thirty) days if the following events take place: (1) In case there is any significant amendment to the terms and conditions proposed
by either the Company or by any Warrant Holders as stated in clause 11.2. (2) In case there is an event that could significantly affect Warrant Holders’ benefits
or the Company’s capability in upholding its obligation in complying with the terms. (3) A Warrant Holder(s), who has/have not exercised their rights at least 25% of the
total issued warrants, may request the Company to convene a Warrant Holders’ Meeting by way of submitting a written notice in which the reason must be clearly stated in such notice, and the Company shall arrange a Warrant Holders’ Meeting. In the event that the Warrant Holders’ Meeting is held, the company shall close the register book to determine the Warrant Holders’ right in attending and voting in such meeting not longer than 21 days prior to the date of Warrant Holders’ meeting with the notification through the SET electronic system not longer than 7 business days prior to the book closing date of warrants.
12.2 Person who has the right to attend the meeting Person who has the right to attend the meeting shall be the following persons:
(1) Warrant Holder and his/her proxy. (2) Financial advisor, legal advisor or person who has an interest in the agenda of
the meeting and/or warrant holder who has requested to explain and give opinion to meeting. (3) Any person who has obtained the approval from the chairman of the meeting to
attend as an observer. 12.3 Invitation Letter The Company shall arrange for the invitation to the meeting for all the Warrant Holders
whose names appeared in the register book of warrant at least not less than 7 days before the meeting of Warrant Holders. The invitation letter should specify at least the meeting venue, meeting date, meeting time, the person who requested for the meeting and the meeting agendas according to 12.1(3). The Warrant Holders who have requested for the meeting shall provide the documents to be used for consideration and voting. The Company shall be responsible for the expense of making copies and used as attachment to be sent along with the invitation letters, and/or for distribution at the Warrant Holders’ meeting. The Company has
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the right to make copies of the document that the Company deems relevant and necessary and/or specifically relevant to the material content from the given documents.
12.4 Proxy Warrant Holders who are entitled to attend the Warrant Holders’ meeting and to cast
their votes can give a proxy to any person to attend the meeting and to cast the votes on their behalf with the proxy form specified by the Company or by the registrar provided in the invitation letter. The proxy form must be delivered to the Chairman of the meeting or the person to be designated by the Chairman prior to the meeting.
12.5 Quorum of the Meeting To form the quorum, there must be at least 25% of the Warrant Holders or their
representatives, who have not exercised their rights. In case the meeting is postponed from the previous meeting due to lack of quorum, there must be at least 5 Warrant Holders or their representative to form the quorum of Warrant Holders’ meeting for this new meeting.
12.6 Chairman of the Meeting The Chairman of the Company or the person designated by the Chairman shall act as the
Chairman of Warrant Holders’ Meeting, whereby the Chairman shall only be able to cast the vote not exceeding the amount of warrants that the Chairman has.
12.7 Meeting Postponement At the Warrant Holders’ Meeting, in case it has been 45 minutes delayed and the
meeting still cannot constitute a quorum, the Chairman of the meeting shall terminate the meeting and proceed as follows:
(1) If the Warrant Holders’ Meeting is called by the Company, the Chairman shall postpone the Meeting to be held again on the time and date to be determined by the Chairman but the date shall be fixed at least after 7 days from the date of the previous meeting but no longer than 14 days from the date of the previous meeting. The Agenda of the new meeting has to be the same as in the previous meeting.
(2) If the Warrant Holders’ Meeting is called by the Warrant Holders or is postponed from the previous meeting due to lack of quorum, there shall not be a new Warrant Holders’ Meeting as in (1). However, the invitation letter for the new Warrant Holders’ Meeting shall be sent to Warrant Holders with the same name and address earlier sent to all Warrant Holders within 3 days before the new meeting time. The Company reserves the right not to send the same documents as sent earlier.
12.8 Resolution of the Meeting The resolutions of the Warrant Holders’ Meeting shall comprise of at least 50% of total
number of warrant units of the Warrant Holders or their representatives of the Warrant Holders and such resolutions shall bind every Warrant Holders whether or not they have attended the meeting. The aforesaid entitled Warrant Holders are defined as those who have no conflict of interest in that particular agenda.
12.9 Minutes of Meeting The Company shall prepare the minutes of the meeting within 14 (fourteen) days from
the date of Warrant Holders’ Meeting with the Chairman’s signature. The Company shall secure copies of the said minutes at the Company’s head office. Such minutes of Warrant Holders’ Meeting with the Chairman’s signature shall bind all Warrant Holders whether or not they have attended the meeting. In the case that the Warrant Holders request the Company copies of
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minutes of the Warrant Holders’ Meeting, the Company shall send the minutes of the Warrant Holders' Meeting as requested at the expense of the Warrant Holders who requested for it.
12.10 Resolutions in written form in substitute of holding the Meeting In case it is required to obtain the approval from the Warrant Holders' Meeting
according to the terms and conditions, the Company may request the Warrant Holders to make the resolution of the meeting in written form in substitute of holding the Warrant Holders' Meeting, provided there must be 50% of the Warrant Holders representing the remaining unexercised warrant with their signatures in the same or separate letter(s) for the resolution. Such letter must be submitted to the Chairman of the Board of Directors or the representative for safekeeping.
Any resolutions under 12.10 cannot be canceled or withdrawn by the Warrant Holders, unless the Company’s consent has been granted. Such resolutions shall bind and apply to all Warrant Holders whether or not they have signed the letter or not.
12.11 Expenses The Company shall be responsible for all reasonable expenses relevant to the meeting
of Warrant Holders.
13. Enforcement of the Terms and Conditions and the Governing Laws This Terms and Conditions of the Warrant shall be enforced from the warrant issuance
date until the last exercise date. This Terms and Conditions shall be interpreted and governed by the laws of Thailand. If there existed any clauses in this Terms and Conditions that are in conflict with the laws, the laws shall supersede the said clauses. The remaining clauses shall remain effective.
The Warrant Issuer AIRA Capital Public Company Limited
( M.R. Kasemvisuth Visuthi ) ( Mrs . Kongkeaw Piamduaytham ) Authorized Director Authorized Director