Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, a determination to redeem or not redeem the Rights, to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses (i) and (iii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates and all other parties, and (iii) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right Certificates.
Appears in 3 contracts
Samples: Rights Agreement (Programmers Paradise Inc), Rights Agreement (Programmers Paradise Inc), Rights Agreement (Alexion Pharmaceuticals Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing members of the Board of Directors or of the Outside DirectorsCompany) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing members of the Board of Directors or of the Outside DirectorsCompany) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion members of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)Company) in good faith, shall (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Company to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
Appears in 3 contracts
Samples: Section 382 Rights Agreement (Cohen & Co Inc.), Section 382 Rights Agreement (Institutional Financial Markets, Inc.), Section 382 Rights Agreement (COHEN & Co INC.)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of each class of Common Stock Shares or of any other class of capital stock outstanding at any particular time, including for purposes of determining the particular percentage of the outstanding voting power or such outstanding shares of Common Stock Shares of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) (as in effect on the date of the General Rules and Regulations this Agreement) under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All Without limiting any of the rights or immunities of the Rights Agent under this Agreement, all such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which that are done or made by the Board of Directors of the Company in good faith shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, or any of the Continuing directors on the Board of Directors or of the Outside Directors Company, to any liability to the holders of the Rights. Without limiting the foregoing, nothing contained herein shall be construed to suggest or imply that the Board of Directors of the Company shall not be entitled to reject any Qualifying Offer or any other tender offer or other acquisition proposal, or to recommend that holders of Common Shares of the Company reject any Qualifying Offer or any other tender offer or other acquisition proposal, or to take any other action (including, without limitation, the commencement, prosecution, defense or settlement of any litigation and the submission of additional or alternative offers or other proposals) with respect to any Qualifying Offer or any other tender offer or other acquisition proposal that the Board of Directors of the Company determines in good faith is necessary or appropriate in the exercise of its fiduciary duties. The Rights Agent is entitled always to assume the Board of Directors of the Company acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
Appears in 3 contracts
Samples: Rights Agreement (Eagle Bulk Shipping Inc.), Rights Agreement (Eagle Bulk Shipping Inc.), Rights Agreement
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of each class of Common Stock Shares or of any other class of capital stock outstanding at any particular time, including for purposes of determining the particular percentage of the outstanding voting power or such outstanding shares of Common Stock Shares of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) (as in effect on the date of the General Rules and Regulations this Agreement) under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which that are done or made by the Board of Directors of the Company in good faith shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, or any of the Continuing directors on the Board of Directors or of the Outside Directors Company, to any liability to the holders of the Rights Rights. Without limiting the foregoing, nothing contained herein shall be construed to suggest or imply that the Board of Directors of the Company shall not be entitled to reject any Qualifying Offer or any other tender offer or other acquisition proposal, or to recommend that holders of Common Shares of the Company reject any Qualifying Offer or any other tender offer or other acquisition proposal, or to take any other action (including, without limitation, the commencement, prosecution, defense or settlement of any litigation and Right Certificatesthe submission of additional or alternative offers or other proposals) with respect to any Qualifying Offer or any other tender offer or other acquisition proposal that the Board of Directors of the Company determines in good faith is necessary or appropriate in the exercise of its fiduciary duties.
Appears in 3 contracts
Samples: Rights Agreement (Terran Orbital Corp), Rights Agreement (Terran Orbital Corp), Rights Agreement
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the Voting Power or the number of shares of Common Voting Stock outstanding at any particular time, including for purposes of determining the particular percentage of Voting Power or such outstanding shares of Common Voting Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or Agreement) and (iii) calculate from time to find or to announce publicly that any Person has become an Acquiring Person)time the Voting Power and the relative voting power of the Marathon Stock and the Steel Stock, in accordance with the Company's Restated Certificate of Incorporation. All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other partiesPersons, and (iiiy) shall not subject the Board of Directors or any directors on the Board of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right CertificatesRights. Nothing contained in this Agreement shall be deemed to be in derogation of the obligation of the Board of Directors to exercise its fiduciary duty or shall be construed to suggest or imply that the Board of Directors shall not be entitled to reject any Qualifying Offer, or to recommend that holders of shares of Voting Stock reject any Qualifying Offer, or to take any other action (including, without limitation, commencing, prosecuting, defending or settling any litigation, recommending that stockholders tender into any other offer, taking any action permitted under any applicable state laws or proposing or engaging, at any time, in any acquisition, disposition or other transfer of any securities of the Company, any merger or consolidation involving the Company, any sale or other transfer of assets of the Company, any recapitalization, liquidation, dissolution or winding up of the Company, or any other business combination or other transaction) with respect to any Qualifying Offer that the Board of Directors believes is necessary or appropriate in the exercise of such fiduciary duty.
Appears in 3 contracts
Samples: Rights Agreement (Usx Corp), Rights Agreement (Usx Corp), Rights Agreement (Marathon Oil Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange ActAct as in effect on the date hereof. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside disinterested Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside disinterested Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, including without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses (i) and (iii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside disinterested Directors)) in good faith, the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties. Further, and (iii) nothing contained in this Agreement shall not subject be deemed to impose on the Board of Directors or the Company any obligation to approve a tender offer, merger, acquisition or other similar proposal by or from a Person even though the terms of such proposal may be fair to stockholders of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right Certificates.
Appears in 2 contracts
Samples: Rights Agreement (Miix Group Inc), Rights Agreement (Miix Group Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Capital Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Capital Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company), or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, a determination to redeem or not redeem the Rights, to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses (i) and (iii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates and all other parties, and (iii) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right Certificates.
Appears in 2 contracts
Samples: Rights Agreement (Quaker State Corp), Rights Agreement (Quaker State Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the provisions of the last sentence of Rule 13d-3(d)(1)(i13d-3(d)(l)(i) of the General Rules and Regulations under the Exchange Act; provided, however, that for all purposes of this Agreement any calculation of the number of shares of Common Stock outstanding at any particular time shall also include all shares of Common Stock issuable upon conversion of all shares of Convertible Preferred Stock outstanding at the applicable time. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, to declare that a Person is an Adverse Person or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)) in good faith, the Outside Directors or the Company shall (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject any member of the Board of Directors of the Company, the or any Continuing Directors or the Outside Directors Director to any liability to the holders of the Rights Rights. Notwithstanding anything to the contrary in this Agreement, from and Right Certificatesafter the election of directors of the Company at the first annual meeting of stockholders of the Company called after the time a Person becomes an Acquiring Person, all provisions of this Agreement that require the action or concurrence of the Continuing Directors shall no longer require the action or concurrence of the Continuing Directors but instead shall require only the action of a majority of the Board.
Appears in 2 contracts
Samples: Rights Agreement (Marcam Solutions Inc), Rights Agreement (Marcam Solutions Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock and/or Voting Securities outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock and/or Voting Securities of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange ActAct as in effect on the date hereof. The Board of Directors of the Company (withor, where specifically provided for hereinspecified in a Section of this Agreement, the concurrence those members of the Continuing Board of Directors or the Outside Directorsother than certain members thereof specified in such Section) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board (or, where specified in a Section of this Agreement, those members of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directorsother than certain members thereof specified in such Section) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (withor, where specifically provided for hereinspecified in a Section of this Agreement, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion those members of the Board of Directors other than certain members thereof specified in such Section) in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board (or, where specified in a Section of this Agreement, those members of the Board of Directors of the Company, the Continuing Directors or the Outside Directors other than certain members thereof specified in such Section) to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 2 contracts
Samples: Exhibit 1 (Family Steak Houses of Florida Inc), Exhibit 1 (Family Steak Houses of Florida Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock Shares outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock Shares of which any Person is the Beneficial Owner, shall be made in accordance with the terms of this Agreement and the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, a determination to redeem or not redeem the Rights, to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses (i) and (iii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and any Right Certificates issued to evidence Rights and all other parties, and (iii) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Company to any liability to the holders of the Rights and Right Certificates.
Appears in 2 contracts
Samples: Rights Agreement, Rights Agreement (3d Systems Corp)
Determinations and Actions by the Board of Directors, etc. For ---------------------------------------------------------- all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the provisions of the last sentence of Rule 13d-3(d)(1)(i13d-3(d)(l)(i) of the General Rules and Regulations under the Exchange Act; provided, however, that for all purposes ----------------- of this Agreement any calculation of the number of shares of Common Stock outstanding at any particular time shall also include all shares of Common Stock issuable upon conversion of all shares of Convertible Preferred Stock outstanding at the applicable time. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, to declare that a Person is an Adverse Person or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)) in good faith, the Outside Directors or the Company shall (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject any member of the Board of Directors of the Company, the or any Continuing Directors or the Outside Directors Director to any liability to the holders of the Rights Rights. Notwithstanding anything to the contrary in this Agreement, from and Right Certificatesafter the election of directors of the Company at the first annual meeting of stockholders of the Company called after the time a Person becomes an Acquiring Person, all provisions of this Agreement that require the action or concurrence of the Continuing Directors shall no longer require the action or concurrence of the Continuing Directors but instead shall require only the action of a majority of the Board.
Appears in 2 contracts
Samples: Rights Agreement (Marcam Corp), Rights Agreement (Marcam Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock or any other class of capital stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, including the right and power to (i) interpret the provisions of this Agreement, Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All Without limiting any of the rights and immunities of the Rights Agent, all such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors Board, or any of the Company, directors on the Continuing Directors or the Outside Directors Board to any liability to the holders of the Rights or shareholders. The Rights Agent is entitled always to assume that the Board acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon. Nothing contained in this Agreement shall be deemed to be in derogation of the obligation of the Board to exercise its fiduciary duties. Without limiting the foregoing, nothing contained herein shall be construed to suggest or imply that the Board is not entitled to reject any tender offer or other acquisition proposal, or to recommend that holders reject any tender offer, or to take any other action (including the commencement, prosecution, defense or settlement of any litigation and the submission of additional or alternative offers or other proposals) with respect to any tender offer or other acquisition proposal that the Board believes is necessary or appropriate in the exercise of its fiduciary duties.
Appears in 2 contracts
Samples: Rights Agreement (International Seaways, Inc.), Rights Agreement (International Seaways, Inc.)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock or Special Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock or Special Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with with, as the Board of Directors deems to be applicable, the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange ActAct or the provisions of Section 382 of the Code, or any successor provision or replacement provision. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a any determination contemplated by the definition of “Acquiring Person” or any determination as to whether particular Rights shall have become void and any determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Company to any liability to any Person, including without limitation the Rights Agent and the holders of Rights. The Rights Agent is entitled always to assume the Rights Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.”
Appears in 2 contracts
Samples: Rights Agreement (Kb Home), Rights Agreement (Kb Home)
Determinations and Actions by the Board of Directors, etc. For --------------------------------------------------------- all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the provisions of the last sentence of Rule 13d-3(d)(1)(i13d-3(d)(l)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, to declare that a Person is an Adverse Person or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)) in good faith, the Outside Directors or the Company shall (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject any member of the Board of Directors or any Continuing Director of the Company, the Continuing Directors or the Outside Directors Company to any liability to the holders of the Rights Rights. Notwithstanding anything to the contrary in this Agreement, from and Right Certificatesafter the election of directors of the Company at the first annual meeting of stockholders of the Company called after the time a Person becomes an Acquiring Person, all provisions of this Agreement that require the action or concurrence of the Continuing Directors shall no longer require the action or concurrence of the Continuing Directors but instead shall require only the action of a majority of the Board.
Appears in 2 contracts
Samples: Rights Agreement (Cytyc Corp), Rights Agreement (Cytyc Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing members of the Board of Directors or of the Outside DirectorsCompany) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing members of the Board of Directors or of the Outside DirectorsCompany) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion members of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)Company) in good faith, shall (iix) shall be final, conclusive and binding on the Company, the Rights AgentAgent (except with respect to the rights, obligations and immunities of the Rights Agent hereunder), the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Company to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
Appears in 1 contract
Samples: Section 382 Rights Agreement (Institutional Financial Markets, Inc.)
Determinations and Actions by the Board of Directors, etc. For all purposes of this AgreementRights Plan, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, by the concurrence requisite vote and/or with the approval of the Continuing Independent Directors or the Outside Directors(where a Majority Director Vote is required)) shall have the exclusive power, power and authority and discretion to administer this Agreement Rights Plan and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence approval of the Continuing Independent Directors or the Outside Directors(where a Majority Director Vote is required)) or to the Company, or as may be necessary or advisable in the administration of this AgreementRights Plan, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Plan and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement Rights Plan (including, but not limited to, including a determination to redeem or not redeem the Rights, to amend exchange the Agreement Rights or to find amend or to announce publicly that any Person has become an Acquiring Personsupplement this Rights Plan). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence approval of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Independent Directors (withwhere a Majority Director Vote is required)) in good faith, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), shall (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Independent Directors (if applicable) to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 1 contract
Samples: Rights Agreement (Travel Services International Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power (a) to (i) interpret the provisions of this Agreement, Agreement and (iib) to make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination with respect to redeem the redemption or not redeem exchange of the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company in good faith shall (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other partiesPersons, and (iiiii) shall not subject the Board of Directors of the Company, the Continuing Directors Company or the Outside Directors any member thereof to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon. Nothing contained in this Agreement shall be construed to suggest or imply that the Board of Directors shall not be entitled to reject any Qualified Offer or any other tender offer or other acquisition proposal, or to recommend that the holders of Common Shares reject any Qualified Offer or any other tender offer or other acquisition proposal, or to take any other action (including, without limitation, the commencement, prosecution, defense or settlement of any litigation and the submission of additional or alternative offers or other proposals) with respect to any Qualified Offer or any other tender offer or other acquisition proposal that the Board of Directors believes is necessary or appropriate in the exercise of its fiduciary duties.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Company Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Company Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Exchange Act Regulations under as in effect on the Exchange Actdate hereof. The Except as otherwise specifically provided herein, the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) to interpret the provisions of this Agreement, and (ii) to make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a determination whether to redeem or not redeem the Rights, rights or to amend this Agreement and whether any proposed amendment adversely affects the Agreement or to find or to announce publicly that any Person has become an Acquiring Person)interest of the holders of Rights Certificates. All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors any member thereof to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
Appears in 1 contract
Samples: Rights Agreement (Marketwatch Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i(a) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Rights Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Rights Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Rights Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Rights Agreement or to find or to announce publicly that any Person has become and a determination of whether there is an Acquiring Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights. The Rights Agent shall always be entitled to assume that the Company's Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon. (b) It is understood that the TIDE Committee (as defined below) of the Board of Directors shall review and evaluate this Rights Agreement in order to consider whether the maintenance of this Rights Agreement continues to be in the interests of the Company, its shareholders and any other relevant constituencies of the Company, at least every three years, or sooner if any Person shall have made a proposal to the Company, or taken any other action, that, if effective, could cause such Person to become an Acquiring Person hereunder, if a majority of the members of the TIDE Committee shall deem such review and evaluation appropriate after giving due regard to all relevant circumstances. Following each such review, the TIDE Committee will communicate its conclusions to the full Board of Directors, including any recommendation in light thereof as to whether this Rights Agreement should be modified or the Rights should be redeemed. The TIDE Committee shall be comprised of the members of the Nominating and Governance Committee of the Board, composed of Directors of the Company who are not officers, employees or Affiliates of the Company.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i(a) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Rights Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Rights Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Rights Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Rights Agreement or to find or to announce publicly that any Person has become and a determination of whether there is an Acquiring Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights. The Rights Agent shall always be entitled to assume that the Company's Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon. (b) It is understood that the TIDE Committee (as defined below) of the Board of Directors shall review and evaluate this Rights Agreement in order to consider whether the maintenance of this Rights Agreement continues to be in the interests of the Company, its shareholders and any other relevant constituencies of the Company, at least every three years, or sooner if any Person shall have made a proposal to the Company, or taken any other action, that, if effective, could cause such Person to become an Acquiring Person hereunder, if a majority of the members of the TIDE Committee shall deem such review and evaluation appropriate after giving due regard to all relevant circumstances. Following each such review, the TIDE Committee will communicate its conclusions to the full Board of Directors, including any recommendation in light thereof as to whether this Rights Agreement should be modified or the Rights should be redeemed. The TIDE Committee shall be comprised of the members of the Nominating and Governance Committee of the Board, composed of Directors of the Company who are not officers, employees or Affiliates of the Company. Section 31.
Appears in 1 contract
Samples: Third Amended and Restated Rights Agreement (Caterpillar Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common any class or series of Voting Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Voting Stock of which any Person is the Beneficial OwnerOwner (or the particular percentage of Voting Power if such shares of Voting Stock represented by shares of Voting Stock Beneficially Owned by such Person), shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Exchange Act Regulations under as in effect on the Exchange Actdate hereof. The Except as otherwise specifically provided herein, the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) to interpret the provisions of this Agreement, Agreement and (ii) to make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which that are done or made by the Board of Directors of the Company in good faith shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors Company or the Outside Directors any member thereof to any liability to the holders of the Rights. It is understood that the Rights Committee (as described below) of the Board of Directors shall review and Right Certificatesevaluate this Agreement in order to consider whether the maintenance of this Agreement continues to be in the best interests of the Company, its stockholders and other relevant constituencies of the Company at least annually, or sooner than that if any Person shall have made a proposal to the Company or its stockholders, or taken any other action that, if effective, could cause such Person to become an Acquiring Person hereunder, if a majority of the members of the Rights Committee shall deem such review and evaluation appropriate after giving due regard to all relevant circumstances. Following each such review, the Rights Committee shall communicate its conclusions to the full Board of Directors, including any recommendation in light thereof as to whether this Agreement should be modified or the Rights should be redeemed. The Rights Committee shall be comprised of members of the Board of Directors who are not officers, employees or Affiliates of the Company. The Rights Committee and the Board of Directors, when considering whether this Agreement should be modified or the Rights should be redeemed, shall have the power to set their own agenda and to retain at the expense of the Company their choice of legal counsel, investment bankers and other advisors. The Rights Committee and the Board of Directors, when considering whether this Agreement should be modified or the Rights should be redeemed, shall have the authority to review all information of the Company and to consider any and all factors they deem relevant to an evaluation of whether this Agreement should be modified or the Rights should be redeemed. Immediately upon the action of the Board of Directors of the Company electing to redeem the Rights pursuant to Section 23 or the effectiveness of such redemption pursuant to Section 29(d) (or, if the resolution of the Board of Directors electing to redeem the Rights pursuant to Section 23(d) states that the redemption will not be effective until the occurrence of a specified future time or event, upon the occurrence of such future time or event), without any further action and without any notice, the right to exercise the Rights will terminate and each Right, whether or not previously exercised, will thereafter represent only the right to receive the Redemption Price in cash or securities, as determined by the Board of Directors; provided, however, that such resolution of the Board of Directors of the Company pursuant to Section 23 may be revoked, rescinded or otherwise modified at any time prior to the time and date of effectiveness set forth in such resolution, in which event the right to exercise will not terminate at the time and date originally set for such termination by the Board of Directors of the Company. Promptly after the Rights are redeemed, the Company shall give notice of such redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such notice in accordance with Section 26.
Appears in 1 contract
Samples: Preferred Stock Rights Agreement (Nexity Financial Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors and the Independent Directors), the Continuing Directors or the Outside Independent Directors) , as the case may be, shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors and the Independent Directors), the Continuing Directors or the Outside Independent Directors) , as the case may be, shall have the exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically granted to the Board (with, where specifically provided for herein, the concurrence of the Continuing Directors and the Independent Directors), the Continuing Directors and the Independent Directors, as the case may be, or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, to declare that a Person is an Adverse Person, to amend the Agreement or to find limit the Substitute Consideration or to announce publicly that any Person has become an Acquiring PersonSpread payable). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or and the Outside Independent Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Independent Directors), as the case may be, in good faith, shall (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the CompanyBoard, the Continuing Directors or the Outside Independent Directors to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (withDirectors, where except as otherwise specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, limitation the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)in good faith, (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Rights Certificates (and, prior to the Distribution Date, registered holders of the Common Stock) and all other parties, and (iiiy) shall not subject the Board of Directors or any member of the Company, the Continuing Directors or the Outside Board of Directors to any liability to the holders of the Rights Rights. Any provision in this Agreement to the contrary notwithstanding, for a period of one-hundred eighty (180) days from and Right Certificatesafter the date hereof, and for a period of one- hundred eighty (180) days from and after the time at which any Person becomes an Acquiring Person, the Board of Directors shall not be empowered to take or approve any action or exercise any rights or powers hereunder, including without limitation causing the Company to redeem Rights, unless at the time such action is approved or taken or such rights or powers are exercised by the Board of Directors a majority of the members of the Board of Directors are Continuing Directors and the action or exercise is approved by a majority of such Continuing Directors.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares Common Shares of Common Stock the Company or any other class of capital stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding Common Shares or other shares of Common Voting Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under Exchange Act Regulations. Except as otherwise specifically provided herein, the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses (i) and (iii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) in good faith shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other partiesPersons. Immediately upon the action of the Board of Directors of the Company electing to redeem the Rights pursuant to Section 23 (or, if the resolution of the Board of Directors electing to redeem the Rights pursuant to Section 23 states that the redemption will not be effective until the occurrence of a specified future time or event, upon the occurrence of such future time or event), without any further action and (iii) shall without any notice, the right to exercise the Rights will terminate and each Right, whether or not subject previously exercised, will thereafter represent only the right to receive the Redemption Price in cash or securities, as determined by the Board of Directors; provided, however, that such resolution of the Board of Directors of the Company pursuant to Section 23 may be revoked, rescinded or otherwise modified at any time prior to the time and date of effectiveness set forth in such resolution, in which event the right to exercise will not terminate at the time and date originally set for such termination by the Board of Directors of the Company. Promptly after the Rights are redeemed, the Continuing Directors or Company shall give notice of such redemption to the Outside Directors to any liability to Rights Agent and the holders of the then outstanding Rights and Right Certificatesby mailing such notice in accordance with Section 26.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a determination to redeem or not to redeem the Rights, Rights pursuant to Section 23 hereof or to supplement or amend the Agreement and whether any proposed supplement or amendment adversely affects the interests of the holders of Right Certificates and comports with the requirements of Section 28 hereof or to find or to announce publicly that any Person has become an Acquiring Person). For all purposes of this Agreement, any calculation of the number of shares of Common Stock or other securities outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock or any other securities of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement. All such actions, calculations, interpretations and determinations (including, including for purposes purpose of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors Company or the Outside Directors any director to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 1 contract
Samples: Rights Agreement (Ogden Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing members of the Board of Directors or of the Outside DirectorsCompany) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing members of the Board of Directors or of the Outside DirectorsCompany) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All Without limiting any of the rights and immunities of the Rights Agent, all such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of a majority of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion members of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)Company) in good faith, shall (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Company to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, Company or any of the Continuing directors on the Board of Directors or of the Outside Directors Company to any liability to the holders of the Rights. 10. The term "Agreement" as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended hereby, and Right Certificatesall references to the Rights Agreement shall be deemed to include this Amendment. 11. This Amendment shall be effective as of the date first written above, and except as set forth herein, the Rights Agreement shall remain in full force and effect and otherwise shall be unaffected hereby. 12. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a determination to redeem or not to redeem the Rights, Rights pursuant to Section 23 hereof or to supplement or amend the Agreement and whether any proposed supplement or amendment adversely affects the interests of the holders of Right Certificates and comports with the requirements of Section 27 hereof or to find or to announce publicly that any Person has become an Acquiring Person). For all purposes of this Agreement, any calculation of the number of shares of Common Stock or other securities outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock or any other securities of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement. All such actions, calculations, interpretations and determinations (including, including for purposes purpose of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors Company or the Outside Directors any director to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence provisions of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such Board of Directors (withthe Board, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes purpose of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights. The fact that any determination or failure to make a determination hereunder may provide or fail to provide benefits to stockholders, to holders of Rights and Right Certificatesor to members of the Board of Directors of the Company shall not in itself be deemed an absence of good faith on the part of the Board of Directors. No member of the Board of Directors of the Company shall be personally liable for any act or omission in the making or not making of any determination under this Agreement.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange ActAct as in effect on the date of this Agreement. The Board of Directors of the Company (withor, where specifically provided for hereinafter any Person has become an Acquiring Person, the concurrence a majority of the Continuing Directors or the Outside continuing Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, including the right and power to (i) interpret the provisions of this Agreement, Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or exchange or not to redeem or exchange the Rights, Rights or to amend the Agreement or to find or to announce publicly Agreement); provided, that any Person has become an Acquiring Person)redemption of Rights shall also be subject to any additional approval procedures required by the certificate of incorporation or by-laws of the Company. All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (withor, where specifically provided for hereinafter any Person has become an Acquiring Person, the concurrence of by the Continuing Directors or the Outside Directors), the Outside Directors or the Company ) in good faith shall (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the CompanyCompany (subject to any additional redemption approval procedures referred to in the proviso to the immediately preceding sentence), the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, Company or the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Rights Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Except as otherwise provided for herein, the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Rights Agreement and to exercise all rights and powers specifically granted to such Board of Directors (withthe Board, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Rights Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Rights Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Rights Agreement or to find or to announce publicly that any Person has become an Acquiring Personin accordance with Section 27 hereof). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent (except with respect to any dispute concerning the Rights Agent’s own rights, duties, obligations or immunities under this Rights Agreement), the holders of the Right Rights Certificates and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
Appears in 1 contract
Samples: Stockholders Rights Agreement (Diana Shipping Inc.)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock or any other class of capital stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) Corporation shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all the rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the CompanyCorporation, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the this Agreement or and any determination as to find or to announce publicly that whether actions of any Person has become an Acquiring shall be such as to cause such Person to beneficially own shares held by another Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company Corporation in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the CompanyCorporation, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Corporation to any liability to the holders of the Rights. Notwithstanding anything herein to the contrary, in no event shall a determination of the Board that may adversely affect the rights of the Rights and Right CertificatesAgent under this Agreement be binding upon the Rights Agent without the express written consent of the Rights Agent, in its sole discretion.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this AgreementRights Plan, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement Rights Plan and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this AgreementRights Plan, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Plan and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement Rights Plan (including, but not limited to, including a determination to redeem or not redeem the Rights, to amend exchange the Agreement Rights or to find amend or to announce publicly that any Person has become an Acquiring Personsupplement this Rights Plan). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights Rights. The Board may at any time and Right Certificatesfrom time to time (and upon the occurrence of a Triggering Event shall forthwith) establish and set aside one or more funds (in such amount or amounts as the Board shall deem necessary or desirable), whether in trust, escrow or other segregated accounts (regardless of whether any such fund is combined for administrative purposes with any other fund or funds established by the Company, for the purpose of assuring that adequate resources are available to the Board of Directors to enable them to carry out their prescribed functions, and to maintain their authority and powers, under this Agreement, or to fulfill their fiduciary obligations to the shareholders of the Company. Without limiting the generality of the statement of purposes contained in the next preceding sentence, the fund or funds so established shall, on demand of a majority of the Directors, be made available to the Board for the purposes of (i) seeking affirmatively to establish, or to defend, the validity of this Agreement, including, without limitation, this Section 28, and (ii) seeking affirmatively to establish, or to defend, the validity and/or propriety of any action taken (or omitted to be taken) by the Board pursuant to this Agreement, the Certificate of Incorporation or the Bylaws or applicable provisions of the Delaware General Corporation Law. The establishment by the Board, and utilization by the Board of Directors, of any fund or funds established pursuant to this paragraph shall be separate and apart from, and shall not detract from, diminish or otherwise affect adversely, any rights or protections afforded, conferred or given to the Company's Directors pursuant to the Certificate of Incorporation of the Company or its Bylaws.
Appears in 1 contract
Samples: Rights Agreement (Ameripath Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock Shares outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock Shares of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, a determination to redeem or not redeem the Rights, to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Person). All such actions, calculations, interpretations and determinations (including, for purposes of clauses (i) and (iii) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates and all other parties, and (iii) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors Company to any liability to the holders of the Rights and Right Certificates. Nothing contained in this Agreement shall be deemed to be in derogation of the obligation of the Board of Directors of the Company to exercise its fiduciary duty. Without limiting the foregoing, nothing contained herein shall be construed to suggest or imply that the Board of Directors of the Company shall not be entitled (subject to the last sentence of Section 27) to oppose any Qualified Offer or any other tender or exchange offer or other acquisition proposal, or to recommend that holders of Common Shares reject any Qualified Offer or any other tender or exchange offer or other acquisition proposal, or to take any other action (including, without limitation, the commencement, prosecution, defense or settlement of any litigation and the submission of additional or alternative offers or other proposals) with respect to any Qualified Offer or any other tender or exchange offer or other acquisition proposal that the Board of Directors of the Company believes is necessary or appropriate in the exercise of such fiduciary duty.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, Company or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a determination to redeem or not redeem the Rights, Rights or to amend this Agreement, whether a Person is an Acquiring Person and whether any proposed amendment adversely affects the Agreement interests of the holders of Right Certificates). For all purposes of this Agreement, any calculation of the number of Common Shares or to find other securities outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding Common Shares or to announce publicly that any other securities of which any Person has become an Acquiring Person)is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) under the Exchange Act as in effect on the date of this Agreement. All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right Certificates. The Rights Agent shall always be entitled to assume that the Board of Directors acted in good faith and shall be fully protected and incur no liability in reliance thereon.
Appears in 1 contract
Samples: Rights Agreement (Staff Leasing Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares Common Shares of Common Stock the Company outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares Common Shares of Common Stock the Company of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act; provided, however, that the number of Common Shares of the Company outstanding at any particular time will include the aggregate number of Common Shares of the Company issuable upon exchange of all Exchangeable Shares and issuable upon conversion of all Common Voting Equivalents outstanding at that particular time. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such Board of Directors (withthe Board, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) to interpret the provisions of this Agreement, Agreement and (ii) to make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Rights Certificates and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights.” The undersigned officer of the Company, being an appropriate officer of the Company and authorized to do so by resolution of the board of directors of the Company, hereby certifies to the Rights Agent that this Amendment is in compliance with the terms of Section 27 of the Agreement. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and Right Certificatesall of which together shall constitute one instrument.
Appears in 1 contract
Samples: Preferred Stock Rights Agreement (Critical Path Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this AgreementRights Plan, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, by the concurrence requisite vote and/or with the approval of the Continuing Independent Directors or the Outside Directors(where a Majority Director Vote is required)) shall have the exclusive power, power and authority and discretion to administer this Agreement Rights Plan and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence approval of the Continuing Independent Directors or the Outside Directors(where a Majority Director Vote is required)) or to the Company, or as may be necessary or advisable in the administration of this AgreementRights Plan, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Plan and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement Rights Plan (including, but not limited to, including a determination to redeem or not redeem the Rights, to amend exchange the Agreement Rights or to find amend or to announce publicly that any Person has become an Acquiring Personsupplement this Rights Plan). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence approval of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Independent Directors (withwhere a Majority Director Vote is required)) in good faith, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), shall (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Independent Directors (if applicable) to any liability to the holders of the Rights Rights. The Board may at any time and Right Certificatesfrom time to time (and upon the occurrence of a Triggering Event shall forthwith) establish and set aside one or more funds (in such amount or amounts as the Board shall deem necessary or desirable), whether in trust, escrow or other segregated accounts (regardless of whether any such fund is combined for administrative purposes with any other fund or funds established by the Company, for the purpose of assuring that adequate resources are available to the Board of Directors (or Independent Directors, as the case may be), to enable them to carry out their prescribed functions, and to maintain their authority and powers, under this Agreement, or to fulfill their fiduciary obligations to the shareholders of the Company. Without limiting the generality of the statement of purposes contained in the next preceding sentence, the fund or funds so established shall, on demand of a majority of the Board or Independent Directors, be made available to the Board (including Independent Directors) for the purposes of (i) seeking affirmatively to establish, or to defend, the validity of this Agreement, including, without limitation, this Section 28, and (ii) seeking affirmatively to establish, or to defend, the validity and/or propriety of any action taken (or omitted to be taken) by the Board (including Independent Directors) pursuant to this Agreement, the Certificate of Incorporation or the Bylaws or applicable provisions of the Delaware General Corporation Law. The establishment by the Board, and utilization by the Board of Directors (or Independent Directors, as the case may be), of any fund or funds established pursuant to this paragraph shall be separate and apart from, and shall not detract from, diminish or otherwise affect adversely, any rights or protections afforded, conferred or given to the Company's Directors (including the Independent Directors) pursuant to the Certificate of Incorporation or Bylaws of the Company.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For ---------------------------------------------------------- all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act, except in such instances where a calculation is to be made on a "fully diluted basis," in which case the total number of shares outstanding shall include shares subject to any outstanding options, warrants or other securities convertible into or exchangeable for Common Stock (other than the Rights). The Subject to the last sentence of this Section 29, the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors those directors who are not certain Persons or the Outside Directorsnominees, representatives, Affiliates or Associates of certain Persons) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors those directors who are not certain Persons or the Outside Directorsnominees, representatives, Affiliates or Associates of certain Persons) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors)such directors) in good faith, the Outside Directors or the Company shall (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors any directors to any liability to the holders of the Rights Rights. Except as otherwise provided by law, the Board of Directors may designate a committee of not less than 3 directors to exercise its power and Right Certificatesauthority to administer this Agreement (subject in all cases, where required under this Agreement, to the concurrence of those directors who are not nominees, representatives, Affiliates or Associates of certain Persons).
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Determinations and Actions by the Board of Directors, etc. For all purposes of this AgreementRights Plan, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, by the concurrence requisite vote and/or with the approval of the Continuing Independent Directors or the Outside Directors(where a Majority Director Vote is required)) shall have the exclusive power, power and authority and discretion to administer this Agreement Rights Plan and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence approval of the Continuing Independent Directors or the Outside Directors(where a Majority Director Vote is required)) or to the Company, or as may be necessary or advisable in the administration of this AgreementRights Plan, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Rights Plan and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement Rights Plan (including, but not limited to, including a determination to redeem or not redeem the Rights, to amend exchange the Agreement Rights or to find amend or to announce publicly that any Person has become an Acquiring Personsupplement this Rights Plan). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company (with, where specifically provided for herein, the concurrence approval of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (i) shall be within the discretion of the Board of Independent Directors (withwhere a Majority Director Vote is required)) in good faith, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), shall (iix) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, parties and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Independent Directors (if applicable) to any liability to the holders of the Rights Rights. The Board may at any time and Right Certificatesfrom time to time (and upon the occurrence of a Triggering Event shall forthwith) establish and set aside one or more funds (in such amount or amounts as the Board shall deem necessary or desirable), whether in trust, escrow or other segregated accounts (regardless of whether any such fund is combined for administrative purposes with any other fund or funds established by the Company, for the purpose of assuring that adequate resources are available to the Board of Directors (or Independent Directors, as the case may be), to enable them to carry out their prescribed functions, and to maintain their authority and powers, under this Agreement, or to fulfill their fiduciary obligations to the shareholders of the Company. Without limiting the generality of the statement of purposes contained in the next preceding sentence, the fund or funds so established shall, on demand of a majority of the Independent Directors, be made available to the Independent Directors for the purposes of (i) seeking affirmatively to establish, or to defend, the validity of this Agreement, including, without limitation, this Section 28, and (ii) seeking affirmatively to establish, or to defend, the validity and/or propriety of any action taken (or omitted to be taken) by the Independent Directors pursuant to this Agreement, the Articles of Incorporation or the Bylaws or applicable provisions of the Florida Business Corporation Act. The establishment by the Board, and utilization by the Board of Directors (or Independent Directors, as the case may be), of any fund or funds established pursuant to this paragraph shall be separate and apart from, and shall not detract from, diminish or otherwise affect adversely, any rights or protections afforded, conferred or given to the Company's Directors (including the Independent Directors) pursuant to the Articles of Incorporation or Bylaws of the Company.
Appears in 1 contract
Samples: Preferred Share Purchase Rights Plan (Pediatrix Medical Group Inc)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i13d-3(d)(l)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of or the Company Continuing Directors, as the case may be (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) , as the case may be), shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors or the Continuing Directors, as the case may be (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) , as the case may be), or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, to declare that a Person is an Adverse Person or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring PersonAgreement). All such actions, calculations, interpretations and determinations de terminations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of or the Company Continuing Directors, as the case may be (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors, as the case may be), the Outside Directors or the Company in good faith, shall (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, or the Continuing Directors or the Outside Directors to any liability to the holders of the Rights and Right CertificatesRights.
Appears in 1 contract
Samples: Rights Agreement (Stride Rite Corp)
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence provisions of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange ActAct as in effect on the date hereof. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited towithout limitation, a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Personthis Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which that are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights, as such, and all other parties, and (iiiy) shall not subject the Board of Directors of the Company, the Continuing Directors or the Outside Directors to any liability to the holders of the Rights. The fact that any determination or failure to make a determination hereunder may provide or fail to provide benefits to shareholders, to holders of Rights or to members of the Board of Directors of the Company shall not in itself be deemed an absence of good faith on the part of the Board of Directors. No member of the Board of Directors of the Company shall be personally liable for any act or omission in the making or not making of any determination under this Agreement. The Board shall be authorized to appoint a Committee and Right Certificatesdelegate to it the authority to exercise the power and authority of the Board under this Agreement.
Appears in 1 contract
Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock or any other class of capital stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) shall have the exclusive power, power and authority and discretion to administer this Agreement and to exercise all rights and powers specifically granted to such the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors) or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, but not limited to, including a determination to redeem or not redeem the Rights, Rights or to amend the Agreement or to find or to announce publicly that any Person has become an Acquiring Person)Agreement) and (iii) accelerate the Final Termination Date in accordance with Section 7(a) hereof. All such actions, calculations, interpretations and determinations (including, for purposes of clauses clause (i) and (iiiy) below, all omissions with respect to the foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), the Outside Directors or the Company (ix) shall be within the discretion of the Board of Directors (with, where specifically provided for herein, the concurrence of the Continuing Directors or the Outside Directors), (ii) shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates Rights and all other parties, and (iiiy) shall not subject the Board of Directors or any of the Company, directors on the Continuing Directors or the Outside Board of Directors to any liability to the holders of the Rights. Notwithstanding anything contained herein to the contrary, the Rights Agent is entitled always to assume that the Company’s Board of Directors acted in good faith and Right Certificatesshall be fully protected and incur no liability in reliance thereon.
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