Value of option changes from ‘in-the-money to ‘out-of-the-money
A holds 40% of the voting rights of B, and holds a currently exercisable in-the-money option to acquire a further 20% of the voting rights of B. Assuming that voting rights give power over B, the option is substantive and no other facts and circumstances are relevant, A would have likely power over B, because A could currently exercise its right to obtain a majority of B”s voting shares.
Consider a situation in which the in-the-money option changed to being slightly (but not deeply) out-of-the-money, due to a change in market conditions. This would probably not trigger re-assessment, because the option is likely to remain substantive, and therefore there is no change in how power over B is evaluated.
Consider a second situation in which the option changed to being deeply-out-of-the-money due to a change in market conditions. This would likely trigger re-assessment, since the option would no longer be substantive, and the fact that the option was previously a substantive right was a critical factor in assessing whether A had power over B.
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