Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent. (a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion. (b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate. (c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct. (d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only. (e) The Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable. (f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement. (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions. (h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity. (i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent. (j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company. (k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 8 contracts
Samples: Shareholder Rights Agreement (Hallmark Capital Corp), Shareholder Rights Agreement (Plexus Corp), Shareholder Rights Agreement (Fiserv Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with competent legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 22 or Section 23 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action takentaken by, suffered or omitted by it in good faith and omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions of any in response to such officer application specifying the action to be taken or for any delay in acting while waiting for such instructionsomitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination.
(m) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 6 contracts
Samples: Section 382 Rights Agreement (Special Diversified Opportunities Inc.), Section 382 Rights Agreement (Special Diversified Opportunities Inc.), Section 382 Rights Agreement (UniTek Global Services, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or Affiliate or Associate thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the BoardChief Executive Officer (including a Person acting in such capacity on an interim basis), the President, the Chief Financial Officer, any Executive Vice President, any Senior Vice President, the Treasurer General Counsel, or the Corporate Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 6 contracts
Samples: Rights Agreement (Tabula Rasa HealthCare, Inc.), Tax Benefit Preservation Plan (Fitlife Brands, Inc.), Tax Benefit Preservation Plan (Enterprise Diversified, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 4 contracts
Samples: Rights Agreement (Catalyst Pharmaceutical Partners, Inc.), Rights Agreement (Medical Staffing Network Holdings Inc), Rights Agreement (Ibasis Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or Affiliate or Associate thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the BoardPrincipal Executive Officer (including a Person acting in such capacity on an interim basis), the Principal Financial Officer, any Executive Vice President, any Senior Vice President, the Treasurer General Counsel, or the Corporate Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the PresidentPrincipal Executive Officer, the Principal Financial Officer, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 4 contracts
Samples: Rights Agreement (Inmune Bio, Inc.), Rights Agreement (Inmune Bio, Inc.), Rights Agreement (Adma Biologics, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement Plan upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the BoardChief Executive Officer, the President, President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementPlan.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the BoardChief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Plan. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 4 contracts
Samples: Tax Benefits Preservation Plan (First Security Group Inc/Tn), Tax Benefits Preservation Plan (Steel Excel Inc.), Tax Benefits Preservation Plan (Pmi Group Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or any Related Person thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary Authorized Officers of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including, but not limited to, the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary Authorized Officers of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 27 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 3 contracts
Samples: Securities Purchase Agreement, Rights Agreement (AiAdvertising, Inc.), Securities Purchase Agreement (AiAdvertising, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement Rights Plan upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement Rights Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chief Executive Officer, the Chairman of the Board, the President, Chief Operating Officer or any Executive Vice President, the Treasurer Secretary or the any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Rights Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Rights Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement Rights Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement Rights Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), ) or (iv) for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Rights Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementRights Plan.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chief Executive Officer, the Chairman of the Board, the President, Chief Operating Officer or any Executive Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Rights Plan. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Rights Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Rights Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 3 contracts
Samples: Shareholder Rights Plan (Sterling Financial Corp /Wa/), Shareholder Rights Plan (Sterling Financial Corp /Wa/), Shareholder Rights Plan (Sterling Financial Corp /Wa/)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement Rights Plan upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement Rights Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chief Executive Officer, the Chairman of the Board, the President, the Vice Chairman or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Rights Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Rights Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement Rights Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement Rights Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Rights Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementRights Plan.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chief Executive Officer, the Chairman of the Board, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Rights Plan. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Rights Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Rights Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 3 contracts
Samples: Tax Benefits Preservation Plan (Citigroup Inc), Exchange Agreement (Citigroup Inc), Tax Benefits Preservation Plan (Citigroup Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany and/or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 22 or Section 23 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt of a certificate furnished pursuant to Section 12 hereof, in the manner provided in Section 3.3, that describing any such change or adjustment is requiredadjustment, upon which the Rights Agent may rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of its duties under this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with such instructions. The Rights Agent shall be fully authorized and protected in relying upon the written most recent instructions of received from any such officer Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or omitted to be taken by the Rights Agent under this Agreement and the date on or after which such instructionsaction shall be taken, suffered or such omission shall be effective. The Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking or suffering any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken, suffered or omitted to be taken.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer officer, agent or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer, agent or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith unless and until it has received such written notice.
(m) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 3 contracts
Samples: Tax Asset Protection Plan (BioScrip, Inc.), Tax Asset Protection Plan (AOL Inc.), Section 382 Rights Agreement (Tenet Healthcare Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company Corporation and the holders of certificates of Common Shares and the holders of Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), Corporation) and the written opinion of such legal counsel shall will be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.. The Rights Agent may also, with the approval of the Corporation (where such approval may reasonably be obtained and such approval not to be unreasonably withheld) and at the expense of the Corporation, consult with such other experts as the Rights Agent shall consider necessary or appropriate to properly carry out the duties and obligations imposed under the Agreement and the Rights Agent shall be entitled to rely in good faith on the advice of any such expert;
(b) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter be proved or established by the Company Corporation prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one a Person believed by the Rights Agent to be a senior officer of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Corporation and delivered to the Rights Agent; and such certificate shall will be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.;
(c) The the Rights Agent shall will be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful wilful misconduct.;
(d) The the Rights Agent shall will not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the certificates for Common Shares or the Rights Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall will be deemed to have been made by the Company Corporation only.;
(e) The the Rights Agent shall will not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due authorization, execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Common Share certificate or Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent will it be responsible for any breach by the Company Corporation of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent will it be responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c4.1(b)), for ) or any adjustment required under the provisions of Section 3.2 or change (or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced after receipt of the certificate contemplated by Rights Certificates after actual notice, in the manner provided in Section 3.3, that 3.2 describing any such change or adjustment is requiredadjustment); nor shall the Rights Agent will it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Common Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Common Shares or shares of Common Stock will, when issued, be duly and validly authorized and authorized, executed, issued and delivered as fully paid and nonassessable.non-assessable;
(f) The Company the Corporation agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(g) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of Person designated in writing by the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyCorporation, and to apply to such officers Persons for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.Person;
(h) The the Rights Agent and any shareholdershareholder or stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Common Shares, Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) Corporation or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) Corporation may be interested, or contract with or lend money to the Company (Corporation or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Corporation or for any other legal entity.; and
(i) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall will not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Corporation resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 3 contracts
Samples: Shareholder Rights Plan Agreement (Mag Silver Corp), Shareholder Rights Plan Agreement (Richmont Mines Inc), Shareholder Rights Plan Agreement (Mag Silver Corp)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken or omitted to be taken by it and in accordance with such opinion and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the Chief Financial Officer, the President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer (each an “Authorized Officer”) of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to and the Rights Agent shall not incur any liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for any special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Rights Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for (i) in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(cSection 6(e)), for ) or (iv) any change or adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in receipt of the manner provided certificate described in Section 3.310 hereof, that such change or adjustment is required); nor shall upon which the Rights Agent may rely). The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly and validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, an Authorized Officer and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received from any such instructionsofficers.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holders of Rights or any other Person resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care bad faith or willful misconduct in the selection and continued employment thereof (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be fully protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Rights Agreement or the exercise or performance of its duties hereunder, in each case in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons or otherwise upon the advice of counsel set forth in this Section 18. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it has received such notice.
Appears in 3 contracts
Samples: Rights Agreement (FTS International, Inc.), Rights Agreement (Tribune Publishing Co), Rights Agreement (Tribune Publishing Co)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Right Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, their acceptance thereof shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, President or any Vice President, President and by the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and . Any such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11 or 13 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that receipt of a certificate describing any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock will, when issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, President or any Vice President, the Treasurer President or the Secretary or the Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 2 contracts
Samples: Rights Agreement (Us Industries Inc /De), Rights Agreement (Us Industries Inc /De)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 2 contracts
Samples: Rights Agreement (Atossa Genetics Inc), Rights Agreement (Atossa Genetics Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith the absence of bad faith, gross negligence or willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, the Rights Agent taking or suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith the absence of bad faith, gross negligence or willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock Shares or Preferred Shares will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith the absence of bad faith, gross negligence and willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 2 contracts
Samples: Rights Agreement (Tempur Sealy International, Inc.), Rights Agreement (Tempur Sealy International, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties expressly imposed by this Agreement Rights Plan (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted to be taken by it in good the absence of gross negligence, bad faith or willful misconduct and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement Rights Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chief Executive Officer, the Chairman of the Board, the President, Chief Operating Officer or any Executive Vice President, the Treasurer Secretary or the any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to for any action taken, suffered or omitted to be taken by it in good faith under the provisions of this Rights Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Plan will be limited in the aggregate to an amount equal to $500,000.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Rights Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility (i) in respect of the validity of this Agreement Rights Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement Rights Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c6(e)), ) or (iv) for any change or adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Rights Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementRights Plan.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chief Executive Officer, the Chairman of the Board, the President, Chief Operating Officer or any Executive Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and to be taken in accordance with the written instructions of any such officer officer. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such officer. Any application by the Rights Agent for written instructions from the Company will be provided to the Company in the manner set forth in Section 22 and may, at the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or omitted by the Rights Agent under this Rights Plan and the date on and/or after which such action shall be taken or suffered or such omission shall be effective. The Rights Agent shall not be liable for any delay action taken or suffered by, or omission of, the Rights Agent in acting while waiting for accordance with a proposal included in any such instructionsapplication on or after the date specified in such application (which date shall not be less than five Business Days after, but not including, the date the Company actually receives such application, unless the Company shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken, suffered or omitted to be taken.
(h) The Rights Agent and any shareholder, affiliate, director, officer officer, agent or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Rights Plan. Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer, agent or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Rights Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with the administration of this Rights Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 2 contracts
Samples: Shareholder Rights Plan (Synovus Financial Corp), Shareholder Rights Plan (Synovus Financial Corp)
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.;
(b) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.;
(c) The the Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.;
(d) The the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.;
(e) The the Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.;
(f) The the Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(g) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.;
(h) The the Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.;
(i) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.;
(j) Ifif, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.; and
(k) No no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 2 contracts
Samples: Stockholders Rights Agreement (Floss Acquisitions Corp), Stockholders Rights Agreement (Peapod Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement Rights Plan (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel selected by it (who may be legal counsel for the CompanyCompany and/or the Board of the Company and/or an employee of the Rights Agent or otherwise), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good the absence of gross negligence, bad faith or willful misconduct and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement Rights Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including, without limitation the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the BoardChief Executive Officer, the President, the Chief Financial Officer, or any Executive Vice President, the Treasurer Secretary or the any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to will incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith under the provisions of this Rights Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Plan will be limited in the aggregate to fifty thousand dollars ($50,000).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Rights Plan or in the Rights Right Certificates (except as to its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility (i) in respect of the validity of this Agreement Rights Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement Rights Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c6(e)), ) or (iv) for any change or adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change change, procedure or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual noticereceipt by the Rights Agent of a certificate delivered pursuant to Section 10 hereof, in the manner provided in Section 3.3, describing any such change or adjustment and stating that such change or adjustment is required); nor shall , upon which the Rights Agent may rely). The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Rights Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of its duties under this AgreementRights Plan.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the BoardChief Executive Officer, the President, the Chief Financial Officer or any Executive Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by it from any such officer. Any application by the Rights Agent for written instructions from the Company will be provided to the Company in the manner set forth in Section 22 and may, at the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or omitted to be taken by the Rights Agent with respect to its duties or obligations under this Rights Plan and the date on and/or after which such action shall be taken or suffered or such omission shall be effective. The Rights Agent shall not be liable to the Company or any other Person for any action taken or suffered by, or omitted to be taken by, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than three (3) Business Days after, but not including, the date the Company actually receives such application, unless the Company shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions from the Company in response to such application specifying the action to be taken, suffered or omitted to be taken.
(h) The Rights Agent and any shareholder, affiliate, director, officer officer, agent or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Rights Plan. Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer, agent or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any other Person resulting from any such act, omission, default, neglect or misconduct, provided the Rights Agent exercised reasonable care absent gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Rights Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing the Rights Agent believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its acceptance and the administration of this Rights Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for any other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel as set forth in Section 17 hereof.
(m) In addition to the foregoing, the Rights Agent shall be protected and will incur no liability for, or in respect of, any action taken, suffered or omitted to be taken by it in connection with its acceptance and administration of this Rights Plan in reliance upon (i) the completion and execution of the form of assignment and/or form of election to purchase set forth on the reverse side of the Right Certificates or (ii) the non- execution or failure to complete the form of assignment and/or form of election to purchase including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such noncompletion, nonexecution or failure.
Appears in 2 contracts
Samples: Tax Benefits Preservation Plan (Fidelity Southern Corp), Tax Benefits Preservation Plan (Fidelity Southern Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company Corporation and the holders of the Rights Right Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, their acceptance thereof shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may also be legal counsel for the CompanyCorporation), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company Corporation prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, President or any Vice President, President and by the Treasurer or the Secretary of the Company Corporation and delivered to the Rights Agent; and . Any such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company Corporation only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofby the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company Corporation of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11 or 13 or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that receipt of a certificate describing any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock will, when issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company Corporation agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, President or any Vice President, the Treasurer President or the Secretary or the Treasurer of the CompanyCorporation, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) Corporation or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) Corporation may be interested, or contract with or lend money to the Company (Corporation or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Corporation or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Corporation resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 2 contracts
Samples: Rights Agreement (Cosi Inc), Rights Agreement (Cosi Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith the absence of bad faith, gross negligence or willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, the Rights Agent taking or suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith the absence of bad faith, gross negligence or willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Stock or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Shares will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith the absence of bad faith, gross negligence and willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 2 contracts
Samples: Rights Agreement (hopTo Inc.), Rights Agreement (Highpower International, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock and Class B Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.;
(b) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.;
(c) The the Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.;
(d) The the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.;
(e) The the Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.;
(f) The the Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(g) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.;
(h) The the Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.;
(i) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.;
(j) Ifif, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.; and
(k) No no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 2 contracts
Samples: Stockholders Rights Agreement (Whitehall Jewellers Inc), Stockholders Rights Agreement (Whitehall Jewellers Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or Affiliate or Associate thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the BoardPrincipal Executive Officer (including a Person acting in such capacity on an interim basis), , the Principal Financial Officer, any Executive Vice President, any Senior Vice President, the Treasurer General Counsel, or the Corporate Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the PresidentPrincipal Executive Officer, the Principal Financial Officer, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 2 contracts
Samples: Rights Agreement (Advaxis, Inc.), Rights Agreement (Biospecifics Technologies Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following express terms and conditions (and no implied terms and conditions), by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good the absence of bad faith and in accordance with such opinionopinion or advice.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconductmisconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees (but not reimbursed expenses) paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for any special, punitive, indirect, incidental or consequential loss or damages of any kind whatsoever (including, without limitation, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damages, and regardless of the form of action.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in notice of any such adjustment upon which the manner provided in Section 3.3, that such change or adjustment is requiredRights Agent may rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties under this Agreement, and duties; such instructions shall provide full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holder of Rights or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided the Rights Agent exercised reasonable care misconduct absent gross negligence or bad faith in the selection and continued employment thereof (which gross negligence or bad faith must be determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company; provided, however, that the Rights Agent shall not be liable for any delays arising from the duties under this Section 20(k).
(l) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any other Person for interest or earnings on any moneys held by the Rights Agent pursuant to this Agreement.
(m) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
(n) The Rights Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any registration statement filed with the Securities and Exchange Commission or this Agreement, including without limitation obligations under applicable regulation or law.
(o) The Rights Agent shall act hereunder solely as agent for the Company. The Rights Agent shall not assume any obligations or relationship of agency or trust with any of the owners or holders of the Rights or Common Stock.
(p) The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any related law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(q) The Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any holder of Rights with respect to any action or default by the Company, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
Appears in 1 contract
Samples: Rights Agreement (Fluor Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including, without limitation, the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c5(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.Rights
Appears in 1 contract
Samples: Shareholder Rights Agreement (St Francis Capital Corp)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee of the Rights Agent), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent and the Rights Agent shall incur no liability as to any action taken, suffered or omitted to be taken by it in good faith and in accordance with such opinionopinion or advice.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the BoardBoard and Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it to be taken in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconductmisconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction). In no case, however, will the Rights Agent be liable for any special, indirect, punitive, incidental or consequential losses or damages of any kind whatsoever (including but not limited to lost profits or reputational harm), even if the Rights Agent has been advised of the possibility of such damages.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in notice of any such adjustment upon which the manner provided in Section 3.3, that such change or adjustment is requiredRights Agent may conclusively rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the BoardBoard and Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties and duties; such instructions shall be full authorization and protection to the Rights Agent, and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying in good faith upon the most recent instructions received by it from any such instructionsofficer. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or omitted to be taken by the Rights Agent under this Agreement and the date on and/or after which such action shall be taken or suffered or such omission shall be effective. The Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by the Rights Agent in accordance with a proposal included in any such application on or after the date specified therein (which date shall not be less than five Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken, suffered or omitted to be taken.
(h) The Rights Agent and any shareholderstockholder, director, officer affiliate officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, director, affiliate, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holder of Rights or any other Person resulting from any such act, default, neglect neglect, or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care in the selection and continued employment bad faith or willful misconduct (each as determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Samples: Rights Agreement (Masimo Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement Plan upon the following terms and conditions, by all of which the Company holders of Right Certificates, by their acceptance thereof, and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, Company shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of by the BoardChief Executive Officer, the its President, its Chief Financial Officer, any Vice President, the Treasurer Secretary or the any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) . The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementPlan.
(gf) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the BoardChief Executive Officer, the its President, its Chief Financial Officer, any Vice President, the Secretary or any Assistant Secretary or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(hg) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Plan. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ih) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(ki) No provision of this Agreement Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(j) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(k) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Tax Benefits Preservation Plan (Triad Guaranty Inc)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement Plan upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the BoardChief Executive Officer, the President, President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for responsible
(i) in respect of the validity of this Agreement Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible ,
(ii) for any breach by the Company of any covenant or condition contained in this Agreement Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible ,
(iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), for or
(iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementPlan.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the BoardChief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Plan. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Tax Benefits Preservation Plan (Porter Bancorp, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any "Acquiring Person" and the determination of "current market price") be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the Chief Financial Officer, the President or any Vice President, the Treasurer President or the Secretary Secretary, of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Rights Agreement (IHS Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement Tax Benefits Preservation Plan upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement Tax Benefits Preservation Plan the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Boarddirector, the PresidentChief Executive Officer, the President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company (each an “Authorized Officer”) and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Tax Benefits Preservation Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement Tax Benefits Preservation Plan or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement Tax Benefits Preservation Plan or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement Tax Benefits Preservation Plan or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(cSection 6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock other securities to be issued pursuant to this Agreement Tax Benefits Preservation Plan or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Stock other securities will, when issued, be duly and validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this AgreementTax Benefits Preservation Plan.
(g) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Companyan Authorized Officer, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing Tax Benefits Preservation Plan. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement Tax Benefits Preservation Plan shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Tax Benefits Preservation Plan or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Ordinary Shares or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided , provided the Rights Agent exercised however , that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Samples: Rights Agreement (Endeavor Ip, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(ai) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.;
(bii) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.;
(ciii) The the Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.;
(div) The the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.;
(ev) The the Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.;
(fvi) The the Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(gvii) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.;
(hviii) The the Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.;
(iix) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.;
(jx) Ifif, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.; and
(kxi) No no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with competent legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, Section 23 or Section 24 or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action takentaken by, suffered or omitted by it in good faith and omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions of any in response to such officer application specifying the action to be taken or for any delay in acting while waiting for such instructionsomitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Right Certificate surrendered to the Rights Agent for exercise or transfer, the Form certification contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereofcompleted, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination.
(m) The provisions of this Section 20 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinionopinion or advice.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, suffering taking or omitting suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered taken or omitted by it suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in notice of any such adjustment upon which the manner provided in Section 3.3, that such change or adjustment is requiredRights Agent may rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Samples: Rights Agreement
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, President or any Vice President, the Treasurer President or the Secretary Secretary, of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Rights Agreement (Aventine Renewable Energy Holdings Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith the absence of bad faith, gross negligence or willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, the Rights Agent taking or suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith the absence of bad faith, gross negligence or willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock Shares or Preferred Shares will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith the absence of bad faith, xxxxx xxxxx and willful misconduct (which bad faith, gross negligence, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Samples: Rights Agreement (Support.com, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations as set forth in this Agreement. The Rights Agent shall perform its duties and duties imposed by this Agreement obligations hereunder upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (Certificates, or, prior to the Distribution Date, the stock certificates for of the Common Stock of the Company)Stock, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent, and, subject to Section 20(c), the Rights Agent as to shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such opinionwritten opinion or advice.
(b) Whenever in the performance of its duties under this Agreement Agreement, the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company Company, and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent, and, subject to Section 20(c), the Rights Agent as to shall incur no liability for or in respect of any action taken, suffered or omitted by it to be taken in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own and its directors’, officers’, employees’, Affiliates’, agents’, advisors’ and representatives’ gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconductmisconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited in the aggregate to the amount of annual fees paid by the Company to the Rights Agent. Notwithstanding anything in this Agreement to the contrary, in no event shall either party hereto be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if such party has been advised of the likelihood of such loss or damage and regardless of the form of action.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonincluding in the case of Book Entry Shares, by notation in book entry accounts reflecting ownership that is directed by the Company) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due authorization, execution hereofand delivery hereof by the Rights Agent) or for in respect of the legality or validity or execution of any Rights Certificate (including in the case of Book Entry Shares, by notation in book entry accounts reflecting ownership as directed by the Company), except for as to a countersignature by one of its countersignature thereon)authorized signatories on any such Rights Certificate; nor shall the Rights Agent it be liable or responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be liable or responsible for any change in adjustment required hereunder, including under the exercisability provisions of Section 11, Section 13, or Section 24 hereof, or liable or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in notice of any such adjustment has been provided by the manner provided in Section 3.3, that such change or adjustment is requiredCompany); nor shall it be liable or responsible for any determination by the Rights Agent Board of the Current Market Price under this Agreement; nor shall it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock will, when so issued, be validly authorized and issued issued, fully paid, and fully paid and nonassessablenon-assessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required or requested by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties under this Agreement, and duties; such advice or instructions shall provide full authorization and protection to the Rights Agent, and, subject to Section 20(c), the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written advice or instructions of any such officer or for any delay in acting while waiting for such these instructions.
(h) The Rights Agent and any shareholderstockholder, affiliate, member, director, officer officer, agent, representative or employee of the Rights Agent (in each case, other than an Acquiring Person) may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, affiliate, member, director, officer, agent, representative or employee of the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, to the registered holders of the Rights or to any other Person resulting from any such act, omission, default, neglect or misconduct, provided the Rights Agent exercised reasonable care absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or the form of election to purchase set forth on the reverse thereof, as the case may be, has either not been properly completed or indicates an affirmative response to clause 1 or 2 thereof, or any other actual or suspected irregularity exists, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with competent legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and or any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 22 or Section 23 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action takentaken by, suffered or omitted by it in good faith and omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five (5) Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions of any in response to such officer application specifying the action to be taken or for any delay in acting while waiting for such instructionsomitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination.
(m) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 1 contract
Samples: Section 382 Rights Agreement (Schmitt Industries Inc)
Duties of the Rights Agent. The Rights Agent undertakes -------------------------- the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock and Designated Preferred Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.;
(b) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.;
(c) The the Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.;
(d) The the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.;
(e) The the Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.;
(f) The the Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(g) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.;
(h) The the Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.;
(i) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.;
(j) Ifif, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.; and
(k) No no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13 or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Samples: Rights Agreement (Qualstar Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the Chief Financial Officer, the President or any Vice President, the Treasurer President or the Secretary Secretary, of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for Section 41 in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , Section 42 for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , Section 43 for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c6(d)), for ) or Section 44 any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Rights Agreement (IHS Inc.)
Duties of the Rights Agent. The Rights Agent undertakes -------------------------- the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Rights Agent) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel of its selection (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c11(a)(ii)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Purchase Price or in the number or kind of shares, shares or other securities or other property issuable upon the exercise thereof) required by this Agreement provided for in Section 3, 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, notice that such change or adjustment is required); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation representation-or warranty as to the authorization or reservation of any Preferred Shares or shares of Preferred Stock or Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Preferred Stock or Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable, nor shall the Rights Agent be responsible for the legality of the terms hereof in its capacity as an administrative agent.
(f) The Company agrees that it will inform the Rights Agent promptly upon the Company's determination that a Person has become an Acquiring Person, and the Rights Agent will not be responsible for determining whether a Person has become an Acquiring Person prior to such notification, except as such status may be indicated in the Form of Certification of Status accompanying a Rights Certificate submitted to the Rights Agent. The Company further agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered taken or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in such application on or after the date specified in such application which date shall not be less than five (5) Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights Rights, the Common Stock or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily peculiarly interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries)Company, and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend expand or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) In addition to the foregoing, the Rights Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon (i) the proper execution of the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment unless the Rights Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the nonexecution of such certification, including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
(m) The Company agrees to give the Rights Agent prompt written notice of any event or ownership which would prohibit the exercise or transfer of the Rights Certificates.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer (each an “Authorized Officer”) of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to and the Rights Agent shall not incur any liability for or in respect of any action taken, suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for any special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Rights Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for (i) in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c6(e)), for ) or (iv) any change or adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in receipt of the manner provided certificate described in Section 3.310 hereof, that such change or adjustment is required); nor shall upon which the Rights Agent may rely). The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly and validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, an Authorized Officer and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received from any such instructionsofficers.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holders of Rights or any other Person resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care bad faith or willful misconduct in the selection and continued employment thereof (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be fully protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its acceptance and administration of this Rights Agreement or the exercise or performance of its duties hereunder, in each case in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons or otherwise upon the advice of counsel set forth in this Section 18. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it has received such notice.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following express terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good the absence of bad faith and in accordance with such opinionopinion or advice.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one either of the Chairman Co-Chairmen of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconductmisconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees (but not reimbursed expenses) paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential loss or damages of any kind whatsoever (including, without limitation, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damages, and regardless of the form of action.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder and certificates delivered pursuant to any provisions hereof from any one either of the Chairman Co-Chairmen of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holder of Rights or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided the Rights Agent exercised reasonable care misconduct absent gross negligence or bad faith in the selection and continued employment thereof (which gross negligence or bad faith must be determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, either (i) the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, or (ii) any other actual or suspected irregularity exists, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company; provided, that the Rights Agent shall not be liable for any delays arising from the duties under this Section 20(k).
(l) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 1 contract
Samples: Rights Agreement (Fox Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, their acceptance thereof shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, President or any Vice President, President and by the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and . Any such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11 or 13 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that receipt of a certificate describing any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock to be issued pursuant to this Rights Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock will, when issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, President or any Vice President, the Treasurer President or the Secretary or the Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 1 contract
Samples: Rights Agreement (Lca Corp)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or Affiliate or Associate thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the BoardChief Executive Officer (including a Person acting in such capacity on an interim basis), the President, the Chief Financial Officer, any Executive Vice President, any Senior Vice President, the Treasurer General Counsel, or the Corporate Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 27 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 1 contract
Samples: Rights Agreement (Turtle Beach Corp)
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel coun sel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligenceneg ligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates Certifi xxxxx (except its countersignature thereon) or be required re quired to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performedper formed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfertrans fer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of AssignmentAssign ment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 1 contract
Samples: Shareholders Rights Agreement (Midamerican Energy Holdings Co)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written legal advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good absent gross negligence, bad faith and or willful misconduct in accordance with and in reliance upon such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including, without limitation, the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the President or any Vice President, the Treasurer President or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be complete and full authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good absent gross negligence, bad faith or willful misconduct under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Agreement will be limited to the aggregate amount of fees paid by the Company to the Rights Agent under this Agreement.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c5(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer President or the Secretary of the Company, and such instructions shall be full authorization and protection to apply to such officers for advice or instructions in connection with its obligations and duties; the Rights Agent and the Rights Agent shall not be liable for or in respect of any action taken, suffered or omitted by it in good absent gross negligence, bad faith and or willful misconduct in accordance with the written instructions of any such officer or for officer. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its duly authorized directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the acceptance and administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Rights Agreement (Genta Inc De/)
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with competent legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 22 or Section 23 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action takentaken by, suffered or omitted by it in good faith and omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five (5) Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions of any in response to such officer application specifying the action to be taken or for any delay in acting while waiting for such instructionsomitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination.
(m) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 1 contract
Samples: Section 382 Rights Agreement (Rubicon Technology, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including, without limitation, the identity of any "Acquiring Person" and the determination of "current market price") be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the BoardChief Executive Officer, the President, President or any Vice President, the Treasurer President or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c5(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the BoardChief Executive Officer, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Rights Agreement (At&t Comcast Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company Corporation and the holders of certificates of Common Shares and the holders of Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), Corporation) and the written opinion of such legal counsel shall will be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.. The Rights Agent may also, with the approval of the Corporation (where such approval may reasonably be obtained and such approval not to be unreasonably withheld) and at the expense of the Corporation, consult with such other experts as the Rights Agent shall consider necessary or appropriate to properly carry out the duties and obligations imposed under the Agreement and the Rights Agent shall be entitled to rely in good faith on the advice of any such expert;
(b) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter be proved or established by the Company Corporation prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one a Person believed by the Rights Agent to be a senior officer of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Corporation and delivered to the Rights Agent; and such certificate shall will be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.;
(c) The the Rights Agent shall will be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful wilful misconduct.;
(d) The the Rights Agent shall will not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the certificates for Common Shares or the Rights Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall will be deemed to have been made by the Company Corporation only.;
(e) The the Rights Agent shall will not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due authorization, execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Common Share certificate or Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent will it be responsible for any breach by the Company Corporation of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent will it be responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c4.1(b)), for ) or any adjustment required under the provisions of Section 3.2 or change (or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced after receipt of the certificate contemplated by Rights Certificates after actual notice, in the manner provided in Section 3.3, that 3.2 describing any such change or adjustment is requiredadjustment); nor shall the Rights Agent will it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Common Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Common Shares or shares of Common Stock will, when issued, be duly and validly authorized and authorized, executed, issued and delivered as fully paid and nonassessable.non-assessable;
(f) The Company the Corporation agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(g) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of Person designated in writing by the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyCorporation, and to apply to such officers Persons for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.Person;
(h) The the Rights Agent and any shareholdershareholder or stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Common Shares, Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) Corporation or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) Corporation may be interested, or contract with or lend money to the Company (Corporation or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Corporation or for any other legal entity.;
(i) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall will not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Corporation resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agent.thereof; and
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise may deposit any cash that may be delivered to it at any time and from time to time in an account at any Canadian chartered bank including, without limitation, Canadian Imperial Bank of Commerce or transferMellon Bank N.A., or any trust corporation existing under the Form laws of Certification of Status attached to the Form of Election to Purchase Canada or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 any province thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 1 contract
Samples: Shareholder Rights Plan Agreement
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with competent legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 22 or Section 23 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action takentaken by, suffered or omitted by it in good faith and omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions of any in response to such officer application specifying the action to be taken or for any delay in acting while waiting for such instructionsomitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination.
(m) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the -------------------------- duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement against the Rights Agent) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel of its selection (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c11(a)(ii)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Purchase Price or in the number or kind of shares, shares or other securities or other property issuable upon the exercise thereof) required by this Agreement provided for in Section 3, 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, notice that such change or adjustment is required); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation representation-or warranty as to the authorization or reservation of any Preferred Shares or shares of Preferred Stock or Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Preferred Stock or Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable, nor shall the Rights Agent be responsible for the legality of the terms hereof in its capacity as an administrative agent.
(f) The Company agrees that it will inform the Rights Agent promptly upon the Company's determination that a Person has become an Acquiring Person, and the Rights Agent will not be responsible for determining whether a Person has become an Acquiring Person prior to such notification, except as such status may be indicated in the Form of Certification of Status accompanying a Rights Certificate submitted to the Rights Agent. The Company further agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered taken or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in such application on or after the date specified in such application which date shall not be less than five (5) Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights Rights, the Common Stock or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily peculiarly interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries)Company, and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend expand or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) In addition to the foregoing, the Rights Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon (i) the proper execution of the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment unless the Rights Agent shall have actual knowledge that, as executed, such certification is untrue, or (ii) the nonexecution of such certification, including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.
(m) The Company agrees to give the Rights Agent prompt written notice of any event or ownership which would prohibit the exercise or transfer of the Rights Certificates.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the Chief Financial Officer, the President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer (each an “Authorized Officer”) of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to and the Rights Agent shall not incur any liability for or in respect of any action taken, suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for any special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Rights Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for (i) in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(cSection 6(e)), for ) or (iv) any change or adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual noticereceipt of the certificate described in Section 10 hereof, in the manner provided in Section 3.3, that such change or adjustment is required); nor shall upon which the Rights Agent may rely). The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly and validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, an Authorized Officer and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received from any such instructionsofficers.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holders of Rights or any other Person resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care bad faith or willful misconduct in the selection and continued employment thereof (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be fully protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its acceptance and administration of this Rights Agreement or the exercise or performance of its duties hereunder, in each case in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons or otherwise upon the advice of counsel set forth in this Section 18. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it has received such notice.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion and the Rights Agents shall incur no liability for or in respect of any action taken, suffered or omitted by it in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer (each an “Authorized Officer”) of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly and validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, an Authorized Officer and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care bad faith or willful misconduct in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be fully protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its acceptance and administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons or otherwise upon the advice of counsel set forth in this Section 18. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it has received such notice.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including, without limitation, the identity of any "Acquiring Person" and the determination of "current market price") be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c5(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinionopinion or advice.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in notice of any such adjustment upon which the manner provided in Section 3.3, that such change or adjustment is requiredRights Agent may rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or any Related Person thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary Authorized Officers of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, suffered taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including, but not limited to, the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary Authorized Officers of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 27 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 1 contract
Samples: Rights Agreement
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(ai) The before the Rights Agent acts or refrains from acting, the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.;
(bii) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.;
(ciii) The the Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith or willful misconduct.;
(div) The the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.;
(ev) The the Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.;
(fvi) The the Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(gvii) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Rights Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than ten Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier date), unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application subject to the proposed action or omission and/or specifying the action to be taken or omitted;
(hviii) The the Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.;
(iix) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.;
(jx) Ifif, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.;
(kxi) No no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured; and
(xii) the Rights Agent shall not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent shall be specifically notified in writing by the Company of such fact, event or determination.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good the absence of bad faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including without limitation the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer Treasurer, any Assistant Treasurer, the Secretary or the any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it it, in good faith the absence of bad faith, under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (each as determined by a final judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the samesame (except as to its countersignature on such Rights Certificates), but and all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for nor be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be liable or responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be liable or responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13 or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt of a certificate furnished pursuant to Section 12, in the manner provided in Section 3.3, that describing such change or actual notice of any such adjustment is requiredupon which the Rights Agent may conclusively rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder and certificates delivered pursuant to any provision hereof from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such advice or instruction shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable incur no liability for or in respect of any action taken, taken or suffered or omitted to be taken by it by it, in good faith and the absence of bad faith, in accordance with the written advice or instructions of any such officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on and/or after which such instructionsaction shall be taken or such omission shall be effective. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received from any such officer, and shall not be liable for any action taken, suffered or omitted to be taken by it in the absence of bad faith in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any officer of the Company actually receives such application unless instructions of any such officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken, suffered or omitted.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holder of Rights or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care absent gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction) in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, either (i) the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 and/or 2 thereof, or (ii) any other actual or suspected irregularity exists, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with competent legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be liable or responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be liable or responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 22 or Section 23 hereof or liable or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of the Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessablenon-assessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of its rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; it shall not be liable for any action taken or suffered by it in good faith in accordance with instructions of any such Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action takentaken by, suffered or omitted by it in good faith and omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions of any in response to such officer application specifying the action to be taken or for any delay in acting while waiting for such instructionsomitted.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers or employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination.
(m) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination or expiration of this Agreement.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany and/or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with the content of such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of the Current Per Share Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company Authorized Officer and delivered to the Rights Agent; and such certificate certificate, pursuant to its terms, shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability for any action taken, suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates Certificates, including in the case of Book Entry Shares, by notation in book entry accounts reflecting ownership (except its countersignature thereonthereof) or and it shall not be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for will have no liability in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate Certificate, including in the case of Book Entry Shares, by notation in book entry accounts reflecting ownership (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c)), for any adjustment or change (calculation required under the provisions of Section 11, Section 13, Section 22 or Section 23 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change adjustment or adjustment calculation (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt of a certificate furnished pursuant to Section 12 hereof, in the manner provided in Section 3.3, that describing any such change or adjustment is requiredadjustment, upon which the Rights Agent may rely without further investigation or inquiry); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock willor Preferred Stock shall, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of its duties under this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations duties and duties the exercise of the rights hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the CompanyAuthorized Officer, and to apply to any such officers Authorized Officer for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with such instructions. The Rights Agent shall be fully authorized and protected in relying upon the written most recent instructions of received from any such officer Authorized Officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or omitted to be taken by the Rights Agent under this Agreement and the date on or after which such instructionsaction shall be taken, suffered or such omission shall be effective. The Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any Authorized Officer of the Company actually receives such application, unless any such Authorized Officer shall have consented in writing to an earlier date) unless, prior to taking or suffering any such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken, suffered or omitted to be taken.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer officer, agent or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any stockholder, affiliate, director, officer, agent or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction) in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form certificate contained in the form of Certification of Status attached to the Form of Election to Purchase assignment or the Form form of Assignmentelection to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to Question clause 1 and/or or 2 thereof, the Rights Agent shall not take any further action with respect to the such requested exercise or transfer without first consulting with the Company; provided, however, that the Rights Agent shall not be liable for any delays arising from the duties under this Section 19(j).
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) The Rights Agent will not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent is specifically notified in writing by the Company of such fact, event or determination, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith unless and until it has received such written notice.
(m) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of shares of Common Stock for interest or earnings on any moneys held by the Rights Agent pursuant to this Agreement.
(n) The Rights Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any registration statement filed with the Securities and Exchange Commission or this Agreement, including without limitation obligations under applicable regulation or law.
(o) The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(p) The Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any holder of a Rights Certificate or any other Person with respect to any action or default by the Company, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(q) The provisions of this Section 19 shall survive the exercise, exchange, redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
Appears in 1 contract
Samples: Tax Asset Protection Plan (Advanced Emissions Solutions, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion or advice of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinionopinion or advice.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in notice of any such adjustment upon which the manner provided in Section 3.3, that such change or adjustment is requiredRights Agent may rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby hxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties expressly imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyRights Agent or the Company or an employee of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered suffered, or omitted to be taken by it in good the absence of bad faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for, or in respect of, any action taken, suffered or omitted to be taken by it it, in good faith the absence of bad faith, under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith faith, or willful misconductmisconduct (each as determined by a final judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for, nor be responsible for under any responsibility, in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be liable or responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be liable or responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock or other securities will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder and certificates delivered pursuant to any provision hereof from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it it, in good faith and the absence of bad faith, in accordance with the written instructions of any such officer officer. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or for omitted by the Rights Agent under this Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received from any delay in acting while waiting for such instructionsoffice.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company Company, any holder of Rights or any other Person resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, either (i) the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, or (ii) any other actual or suspected irregularity exists, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Samples: Rights Agreement (Advanced Emissions Solutions, Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including, without limitation, the identity of any "Acquiring Person" and the determination of "current market price") be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 2.5(c5(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer President or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconduct, ; provided the Rights Agent exercised that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the cases may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with the administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
Appears in 1 contract
Samples: Rights Agreement (Therasense Inc)
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee or legal counsel of the Rights Agent), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or Affiliate or Associate thereof, and the determination of Current Market Price) be proved or established by the Company prior to the Rights Agent taking, suffering suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by a person believed by the Rights Agent to be any one of the Chairman of the BoardChief Executive Officer (including a Person acting in such capacity on an interim basis), the President, the Chief Financial Officer, any Executive Vice President, any Senior Vice President, the Treasurer General Counsel, or the Corporate Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent as to shall incur no liability, for or in respect of any action taken, suffered taken or suffered or omitted to be taken by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be assumed to have knowledge of and shall not be required to take note of or act upon any fact or circumstance including the occurrence of facts or circumstances leading to the Shares Acquisition Date or the Distribution Date, facts or circumstances relating to whether any Person may be an Affiliate or an Associate of any other Person, facts or circumstances relevant to an adjustment to the Purchase Price, facts or circumstances relevant to events described in Section 13, Section 23 and Section 24, which may be relevant to performance by the Rights Agent under this Agreement unless the Company has provided written notice thereof to the Rights Agent; and the Company agrees that it will (i) promptly notify the Rights Agent in writing of the occurrence of the Shares Acquisition Date (including the identity of the Acquiring Person and the date on which the Shares Acquisition Date occurred), the Distribution Date, the Redemption Date, and of any events described in Section 13, and (ii) promptly provide the Rights Agent with such other information as the Rights Agent may reasonably request in connection with the performance of its duties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought. Anything to the contrary notwithstanding, in no event will the Rights Agent be liable for special, punitive, indirect, incidental or consequential damage or loss of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(f) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(eg) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c)), for 7(e) hereof) or any adjustment required under the provisions of Section 11, Section 13, Section 23 or change (Section 24 hereof or responsible for the manner manner, method or method amount of determining same) in the terms of the Rights (including any such change or adjustment or change in the Exercise Price or in the number or kind ascertaining of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual noticereceipt by the Rights Agent of a certificate describing any such adjustment, in the manner provided in delivered pursuant to Section 3.3, that such change or adjustment is required12); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock any other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(fh) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(gi) The Rights Agent is hereby xxxxxx authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer. Notwithstanding anything in this Agreement to the contrary, the Rights Agent shall not be required to take any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is illegal.
(hj) The Rights Agent and any shareholderstockholder, Affiliate, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, Affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(ik) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers, and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect neglect, or misconduct, provided absent gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) of the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(kl) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) or in the exercise of any of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(m) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been properly completed or duly executed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(n) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of Common Shares for interest or earnings on any monies held by the Rights Agent pursuant to this Agreement.
(o) The Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 27 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
Appears in 1 contract
Samples: Rights Agreement
Duties of the Rights Agent. The Rights Agent undertakes the obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock and Series B Preferred Stock of the Company), by accepting the same, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The the Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in accordance with such opinion.;
(b) Whenever whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered or omitted by it in good faith in reliance upon such certificate.;
(c) The the Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.;
(d) The the Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.;
(e) The the Rights Agent shall not be responsible for the validity of this Agreement or the execution and delivery hereof (except for its due execution hereof) or for the validity or execution of any Rights Certificate (except for its countersignature thereon); nor shall the Rights Agent be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent be responsible for any change in the exercisability of the Rights (including Rights becoming void pursuant to Section 2.5(c7(d)), for any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement Section 11, 13, 23 or 24 or for ascertaining the existence of facts which would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.312, that such change or adjustment is required); nor shall the Rights Agent by any act hereunder be deemed to have made any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock will, when issued, be validly authorized and issued and fully paid and nonassessable.;
(f) The the Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.;
(g) The the Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations and duties; and the Rights Agent shall not be liable for any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructions.;
(h) The the Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries or any other entity.;
(i) The the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties hereunder either directly or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agent or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care in the selection and continued employment of such attorney or agent.;
(j) Ifif, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.; and
(k) No no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith, or willful misconduct (which gross negligence, bad faith or willful misconductmisconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, or consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) IfThe Rights Agent may assign this Agreement or any rights granted hereunder, in whole or in part, either to an Affiliate, another division, subsidiaries or in connection with respect its reorganization or to successors of any Rights Certificate surrendered to or a majority of the Rights Agent for exercise Agent’s assets or transferbusiness, without the Form prior written consent of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(l) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Agreement upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own negligence, bad faith faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals recital contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals recital are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13, or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Preferred Shares or shares of Common Stock or Preferred Stock will, when so issued, be validly authorized and issued and issued, fully paid paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged acknowledged, and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer or the Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, taken or suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer officer, or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect neglect, or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
Appears in 1 contract
Duties of the Rights Agent. The Rights Agent undertakes to perform only the duties and obligations and duties expressly imposed by this Agreement (and no implied duties) upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the CompanyCompany or an employee of the Rights Agent), and the written advice or opinion of such legal counsel counsel, in the absence of bad faith, shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including without limitation, the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the President, any President or a Vice President, and by the Treasurer Chief Financial Officer or an Assistant Financial Officer or the Corporate Secretary or an Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in good faith under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Right Certificate; nor shall the Rights Agent it be responsible for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c6(e)), for ) or any change or adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein, or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in receipt of the manner provided certificate described in Section 3.310 hereof, that such change or adjustment is requiredupon which the Rights Agent may rely); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly authorized, validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any President or a Vice President, and by the Treasurer Chief Financial Officer or an Assistant Financial Officer or the Corporate Secretary or an Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for or in respect of any action taken, suffered or omitted by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it the Rights Agent were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent or any such stockholder, affiliate, director, officer or employee from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, provided the Rights Agent exercised reasonable care absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it; provided, however, that the Rights Agent shall promptly notify the Company in writing of such belief.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be authorized and protected and shall incur no liability for, or in respect of any action taken, suffered or omitted by it in connection with its acceptance and administration of this Agreement and the exercise and performance of its duties hereunder, in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel as set forth in Section 18 hereof.
Appears in 1 contract
Samples: Rights Agreement (MSC Software Corp)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties expressly imposed by this Agreement (and no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the registered holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to and the Rights Agent shall incur no liability for or in respect of any action taken, suffered taken or omitted by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking, taking or suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent as to for any action taken, taken or suffered or omitted by it to be taken in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconductmisconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no event will the Rights Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. Any liability of the Rights Agent under this Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates (except its countersignature thereon) or and it shall not be required to verify the samesame (except as to a countersignature by one of its authorized signatories on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for or be responsible for under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except for its the due execution hereofand delivery hereof by the Rights Agent) or for in respect of the validity or execution of any Rights Certificate (except for a countersignature by one of its countersignature thereonauthorized signatories on any such Rights Certificate); nor shall the Rights Agent it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall the Rights Agent it be responsible for any change in adjustment required under the exercisability provisions of Section 11, Section 13 or Section 24 hereof or responsible for the Rights (including Rights becoming void pursuant to Section 2.5(c))manner, for method, or amount of any such adjustment or change (or for the manner or method ascertaining of determining same) in the terms of the Rights (including any adjustment or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise thereof) required by this Agreement or for ascertaining the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the Rights Agent it by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Common Shares or Preferred Shares or shares of Common Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Preferred Shares or shares of Common Stock will, when so issued, be validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge acknowledge, and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments instruments, and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; such instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall not be liable for any action taken, suffered suffered, or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell sell, or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company resulting from any such act, default, neglect neglect, or misconduct; provided, provided the Rights Agent exercised however, that reasonable care was exercised in the selection and continued employment of such attorney or agentthereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
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Samples: Rights Agreement (StealthGas Inc.)
Duties of the Rights Agent. The Rights Agent undertakes the duties and obligations and duties imposed by this Rights Agreement upon the following terms and conditions, by all of which the Company and the holders of the Rights Certificates (or, prior to the Distribution Date, the stock certificates for the Common Stock of the Company)Right Certificates, by accepting the sametheir acceptance thereof, shall be bound, and no implied obligations or duties shall be read into this Agreement against the Rights Agent.:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the written advice or opinion of such legal counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken, suffered taken or omitted by it in good faith and in accordance with such opinion and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem deems it necessary or desirable that any fact or matter (including the identity of any “Acquiring Person” and the determination of “current market price”) be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate executed signed by any one of the Chairman of the Board, the PresidentChief Executive Officer, the President or any Vice President, the Secretary, any Assistant Secretary, the Treasurer or the Secretary any Assistant Treasurer (each an “Authorized Officer”) of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent as to for any action taken, suffered or omitted by it in good faith by it under the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith actual fraud or willful misconductmisconduct (which gross negligence, actual fraud or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Rights Right Certificates (except its countersignature thereonthereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be responsible for (i) in respect of the validity of this Rights Agreement or the execution and delivery hereof (except for its the due execution hereofhereof by the Rights Agent) or for in respect of the validity or execution of any Rights Right Certificate (except for its countersignature thereonthereof); nor shall the Rights Agent be responsible , (ii) for any breach by the Company of any covenant or condition contained in this Rights Agreement or in any Rights Right Certificate; nor shall the Rights Agent be responsible , (iii) for any change in the exercisability of the Rights (including the Rights becoming null and void pursuant to Section 2.5(c6(e)), for ) or (iv) any adjustment or change (or for the manner or method of determining same) in the terms of the Rights (including any adjustment the manner, method or change in the Exercise Price or in the number or kind of shares, securities or other property issuable upon the exercise amount thereof) required by this Agreement provided herein or for the ascertaining of the existence of facts which that would require any such change or adjustment (except with respect to the exercise of Rights evidenced by Rights Right Certificates after actual notice, in the manner provided in Section 3.3, that notice of any such change or adjustment is requiredadjustment); nor shall the . The Rights Agent shall not by any act hereunder be deemed to have made make any representation or warranty as to the authorization or reservation of any Preferred Shares or shares of Common Preferred Stock or other securities to be issued pursuant to this Rights Agreement or any Rights Right Certificate or as to whether any Preferred Shares or shares of Common Preferred Stock or other securities will, when issued, be duly and validly authorized and issued and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver deliver, or cause to be performed, executed, acknowledged and delivered delivered, all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its obligations and duties hereunder from any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company, an Authorized Officer and to apply to such officers for advice or instructions in connection with its obligations duties, and duties; and the Rights Agent it shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and in accordance with the written instructions of any such officer or for any delay in acting while waiting for such instructionsofficer.
(h) The Rights Agent and any shareholderstockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or in any other securities of the Company (including the Preferred Shares and its Common Stock) or become pecuniarily interested in any transaction in which the Company (or any of its Subsidiaries) may be interested, or contract with or lend money to the Company (or any of its Subsidiaries), and may otherwise act as fully and freely as though it were not the Rights Agent under this Rights Agreement; and nothing . Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company, any of its Subsidiaries Company or for any other entityPerson.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any of its obligations or duties duty hereunder either directly itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney attorneys or agent agents or for any loss to the Company or to any holders of Rights resulting from any such act, default, neglect or misconductmisconduct absent gross negligence, provided the Rights Agent exercised reasonable care actual fraud or willful misconduct in the selection and continued employment thereof (which gross negligence, actual fraud or willful misconduct must be determined by a final, non-appealable judgment of such attorney or agenta court of competent jurisdiction).
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the Form of Certification of Status attached to the Form of Election to Purchase or the Form of Assignment, as the case may be, has either not been completed or indicates an affirmative response to Question 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to the requested exercise or transfer without first consulting with the Company.
(k) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its obligations or duties hereunder or in the exercise of its rights or powers hereunder if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assuredassured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent shall be fully protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its acceptance and administration of this Rights Agreement or the exercise or performance of its duties hereunder, in each case in reliance upon any Right Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons or otherwise upon the advice of counsel set forth in this Section 18. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it has received such notice.
Appears in 1 contract
